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'\J 


C.J.  MULTHAUF.aR. 

ATTORNEY  AND  COONS  iUO«/   ■' 
LOS  ANaELLS/iy 

,-     \ 


O:. 


SELECTED  CASES 


ON 


REAL  PROPERTY. 


SELECTED    AND    ARRANGED    FOR     USE     IN     CONNECTION     WITH     THE 
author's    TREATISE    ON    REAL    PROPERTY. 


BY 
CHRISTOPHER  G.  TIEDEMAN,  LL.D., 

Author  of  Treatises  on  Heal  Property,  Commercial   Paper,  Limitations 
of  Police  Power,  Etc. 


ST.    LOUIS,    MO.: 

THE  F.  H.  THOMAS   LAW    BOOK  CO. 

1897. 


9.4^3 


s/- 


Entered  according  to  Act  of  Congress,  In  the  year  1S97,  by 

CHRISTOPHER    G,  TIEDEMAN, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Press  of 
Nixon- Jones  Printing  Co. 
216  Pine  Street, 
St.  Louis,  Mo. 


PREFACE. 


For  the  past  five  years  there  has  been  a  very  energetic  dis- 
cussion among  the  legal  educators  of  the  country,  in  which  the 
American  Bar  Association  have  taken  an  active  part  in  their  suc- 
cessive annual  meetings,  as  to  the  merits  of  rival  methods  of 
legal  education.  A  careful  analysis  of  these  discussions  seems  to 
me  to  reveal  most  clearly  that  in  the  future  the  method  of  in- 
struction, that  will  prevail  in  the  great  majority  of  the  law  schools 
of  the  country,  will  be  based  upon  the  twin  principles  of  ex- 
posilion  and  illustration:  Exposition,  by  means  of  the  formal 
lecture  or  by  recitation  based  upon  the  previous  study  of  the 
text-book ;  and  illustration ,  by  the  use  of  selected  cases,  which 
will  illustrate  the  application  of  the  principle  in  actual  litigation. 
It  is  undoubtedly  true  that  the  need  of  illustration  has  been 
always  felt  by  the  teachers  of  law,  as  long  as  law  schools  have 
been  in  existence ;  and  until  recently,  they  have  attempted  to 
supply  this  want  by  referring  the  student  to  particular  cases,  to 
be  found  in  the  official  or  other  published  reports,  and  by  the 
establishment  of  moot  courts.  The  moot  courts  have  proven 
unsuccessful  everywhere;  and  in  most  law  schools  they  have  been 
abandoned.  The  professorial  reference  to  cases  has  not  proven 
altogether  successful,  either  because  the  student  would  not  take 
the  trouble  to  read  the  cases;  or  because  there  were  not  enough 
copies  of  the  report  in  the  law  school  library,  to  enable  all  the 
students  to  read  the  case  referred  to.  This  inefficiency  in  the 
older  method  of  instruction,  under  the  influence  of  Harvard's 
advocacy  of  the  pure  case  method  of  instruction,  has  led  to  the 
publication  of  a  number  of  selections  of  cases,  to  be  used  in 
connection  with  text-book  and  lecture. 

My  efforts  in  the  production  of  legal  treatises,  adapted  for  use 
in  law  schools  as  text-books,  have  met  with  such  great  favor,  that 
one  or  more  of  them  are  now  in  use  in  thirty-six  law  schools. 
From  many  of  the  professors,  who  use  my  text-books,  have 
come  the  request  that  I  publish  a  volume  of  selected  cases, 
adapted  for  use  in  connection  with  my  text-books.  Believing 
as  I  do  that  this  will  be  the  ultimately  established  method  of 
instruction  in  law  schools,  I  have  begun  the  preparation  of  these 

(iii) 


^7/on4> 


IV  PREFACE. 

collections  of  cases,  and  herewith  present  the  volume  of 
*'  Selected  Cases  on  Real  Property."  The  cases  are  selected  to 
illustrate  the  principles  expounded  in  the  text-book,  and  are 
arran<red,  as  nearly  as  possible,  in  the  order  of  discussion  there 
adopted.  Inasmuch  as  the  cases  here  presented  are  intended  to 
illustrate  the  practical  application  of  legal  principles  to  litigated 
causes  in  this  country,  the  latest  American  cases  of  merit,  which 
could  be  found,  have  been  selected,  rather  than  old  or  English 
cases. 

While  this  volume  is  specially  prepared  for  use  in  connection 
with  my  text-books  it  can  be  successfully  employed  along  with 
any  other  treatise,  or  as  an  aid  to  students  in  a  course  of  lec- 
tures. 

Christopher  G.  Tiedeman. 

New  York  City 


INTRODUCTION.* 


METHODS  OF  LEGAL  EDUCATION. 

The  question  of  legal  education  is  receiving  more  attention  in  this  country 
than  it  has  ever  before  had  given  to  it.  This  great  manifestation  of  interest 
in  discussions  over  the  merits  of  different  methods  of  instruction  cannot  fail 
to  be  productive  of  great  good  by  the  detection  of  whatever  is  faulty  in  each 
of  the  so-called  methods  of  instruction,  and  the  possible  construction  of  a 
new  system,  composed  of  whatever  is  found  to  be  good  in  the  several  preva- 
lent methods.  But  the  caution  must  be  observed  that,  after  all,  no  iron-cast 
method  of  instruction  can  be  successful  in  actual  application,  however  flawless 
it  may  seem  to  be  in  theory.  The  individuality  of  the  teacher  must  not  be  par- 
alyzed by  any  fixed  system  of  instruction.  For  the  native  talent  of  the  pro- 
fessor for  teaching  counts  for  a  great  deal  more  than  the  peculiarities  of  his 
method  of  instruction.  And  very  often  the  strong  personality  of  the  teacher 
will  successfully  conceal  the  defects  of  the  methods  which  he  employs.  But 
after  due  allowance  has  been  made  for  the  full  play  of  the  teacher's  individ- 
uality, methods  of  instruction  may  be  made  to  conform  to  general  principles, 
and  maybe  improved  or  made  worse  according  to  the  correctness  of  the  funda- 
mental principles  upon  which  they  are  established.  Bearing  in  mind  that  a 
very  poor  and  fundamentally  faulty  method  of  instruction  may  be  made  to  pro- 
duce satisfactory  results  by  the  indefinable  and  immeasurable  influence  of  a 
truly  great  teacher  and  eliminating,  as  far  as  possible,  this  personal  equation 
from  the  criticism  of  different  methods  of  instruction,  there  is  but  one  way  to 
ascertain  with  any  reliability  their  respective  merits  and  demerits,  and  that  is 
by  a  criticism  of  the  soundness  or  unsoundness  of  the  fundamental  conceptions 
of  the  law  upon  which  they  are  based. 

In  the  first  place,  a  distinction  should  be  made  between  the  relative  merits 
of  methods  of  instruction  and  of  the  materials  used  in  imparting  instruction. 
If  I  have  not  entirely  misconceived  the  character  of  the  discussions  which  have 
been  provoked  by  recent  events,  and  by  the  active  interference  of  the  American 
Bar  Association,  they  principally  relate  to  the  character  of  the  materials 
employed  in  giving  instruction,  and  not  to  rival  methods  of  instruction.  There 
are  but  two  essentially  different  methods  of  legal  instruction  in  use  in  this 
country,  viz. :  the  European  system  of  formal  lectures  with  or  without  the 
collateral  aid  of  the  seminarium,  and  on  the  other  hand,  instruction  by 
a  combination  of  recitations  and  informal  discussions  of  questions  and 
principles  of  law  in  proportions  varying  with  the  individuality  of  the  teacher. 
In  many  of  the  law  schools,  probably  in  the  great  majority  of  them,  both 
methods  are  employed  to  some  extent,  but  only  two  prominent  law  schools 

•  First  pablished  In  Yale  Law  Journal,  March,  1892. 

(V) 


VI  INTRODUCTION. 

employ  the  first  method  more  or  less  exclusively.  If  I  have  not  been  mis- 
informed, the  other  prominent  law  schools  of  the  country,  as  well  as  the 
great  majority  of  the  smaller  schools,  employ  in  the  main  the  latter  method  of 
instruction,  i.  e.,  by  recitation  and  informal  discussion  by  teacher  and  student. 
If  the  law  students  of  any  one  school  were  composed  entirely  of  college-bred 
men,  and  therefore  possessed  of  more  or  less  well-trained  minds,  the  former 
method  of  instruction  is  in  my  judgment  unquestionably  superior  to  the  latter. 
For  if  the  duty  of  the  teacher  is  to  explain  and  discuss  the  principles  and  rules 
of  law,  he  can  do  so  more  effectively  and  can  accomplish  more  in  a  given  time, 
if  he  is  not  obliged  to  take  up  his  time  with  catechising  the  students,  and  lis- 
tening to  their  opinions,  which  even  in  the  case  of  college-bred  men  must  be 
the  immature  reflections  of  a  tyro.  And  that  method  of  instruction  would  be 
brought  to  a  state  of  comparative  perfection,  if  the  lecturer  were  to  place  in 
the  hands  of  his  hearers  an  elementary  treatise  on  the  subject  of  his  instruc- 
tion, whose  treatment  and  analysis  he  follows  in  his  lectures  so  that  the  stu- 
dent can  come  to  the  class-room  already  possessed  of  information  concerning 
the  elementary  principles,  suflicient  to  enable  the  professor  to  proceed  directly 
to  the  more  profound  discussions  of  the  subject,  and  to  the  practical  applica- 
tion of  these  principles  to  the  variety  of  cases,  which  the  teacher  can  best 
draw  from  the  adjudication  of  the  courts.  This  is  the  system  which  I  learned 
to  admire  while  sitting  under  the  skillful  instruction  of  the  celebrated  von 
Ihering,  of  the  University  of  Goettingen. 

But  the  formal  lecture  is  not  suited  for  the  ordinary  American  law  school,  for 
the  reason  that  the  average  law  student  does  not  come  to  the  law  school  with 
such  a  trained  mind  as  a  college  course  generally  insures.  I  cannot  think 
there  is  much  doubt  that  as  long  as  the  law  schools  are  obliged,  in  the  con- 
sideration of  the  highest  interests  of  the  legal  profession,  to  accommodate 
themselves  to  the  needs  of  students  who  come  to  them  with  untrained  minds, 
the  latter  method  of  instruction,  i.  e.,  of  recitation  and  informal  colloquies,  is 
the  best  adapted  to  our  present  needs.  I  believe  that  the  legal  profession 
generally  entertain  the  same  opinion.  At  any  rate,  with  very  few  exceptions  — 
and  the  most  prominent  law  schools  do  not  constitute  these  exceptions  —  the 
common  method  of  instruction  is  the  one  described  as  a  combination  of  reci- 
tations and  colloquy. 

The  most  serious  discussion  relates  not  so  much  to  methods  of  instruction, 
in  the  sense  in  which  I  employ  the  terms  here,  as  to  the  materials  used  in  giving 
the  instruction.  The  important  inquiry,  to  which  I  understand  myself  to  have 
been  invited  to  principally  direct  myself,  in  the  present  instance,  is  concern- 
ing the  relative  value  of  the  use  of  text-books,  or  treatises,  or  of  leading  ad- 
judicated cases,  in  giving  legal  instruction.  As  I  understand  it,  both  parties 
to  this  controversy  substantially  agree  that  the  instruction  in  the  class-room 
should  generally  assume  the  informal  character  of  a  recitation  and  colloquy, 
their  point  of  difference  being  the  materials  from  which  the  student  is  to  recite, 
and  about  which  the  colloquy  is  to  be  had. 

The  relative  value  of  test -books  and  of  adjudicated  cases  in  giving  legal  in- 
struction can  only  be  determined,  as  I  stated  above,  by  a  criticism  of  the  con- 
ceptions of  law  which  underlie  the  contention,  and  the  aims  held  in  view  in 
providing  for  legal  instruction. 

There  are  four  things  to  be  attained  by  systematic  legal  instruction,  and  no 


INTRODUCTION.  Vll 

system  is  complete  which  Qoes  not  make  provision  for  the  attainment  of  all  of 
them,  viz. :  to  teach  O)  what  is  the  law;  (2)  how  law  is  evolved  or  made;  (3) 
how  to  extract  the  ruling  principle  of  law  from  an  adjudicated  case;  (4)  how 
to  apply  known  principles  of  law  to  new  cases  as  they  arise. 

No  one  would  deny  that  the  study  of  actual  cases  will  a'i.one  satisfy  the  third 
and  fourth  requirements  of  legal  education,  as  just  set  forth.  Nor  can  there 
be  much  doubt  that  a  student  cannot  learn  how  law  is  made,  unless  he  studies 
adjudicated  cases,  even  where  the  particular  matter  is  regulated  by  statute. 
For  the  statute  does  not  always  contain  the  true  living  rule  of  conduct.  The 
true  rule  or  rules,  which  are  produced  by  the  enactment  of  a  statute,  are  not 
to  be  found  in  the  letter  of  the  statute,  but  in  the  construction  placed  upon  it 
by  the  courts.  The  law  student  cannot  find  in  the  Statute  of  Frauds  all  that  is 
necessary  for  him  to  determine  when  a  writing  is  necessary  to  the  validity  of  a 
contract.  He  must  look  for  an  accurate  answer  to  his  inquiry  to  the  thousands 
of  cases  in  which  the  provisions  of  the  Statute  of  Frauds  have  been  construed 
and  modified  in  their  application  to  particular  cases,  or  he  must  go  to  some 
reliable  treatise  on  the  subject,  whose  author  has  made  the  investigation  for 
him.  The  student  should  be  made  to  understand  that  the  edicts  of  the  legis- 
lature are  not  in  themselves  necessarily  living  law,  except  so  far  as  they  reflect 
the  prevalent  sense  of  right,  but  that  the  real  rule  of  civil  conduct  is  to  be  ex- 
tracted from  the  cases,  in  which  the  statutory  rule  finds  in  its  application  to 
individual  litigation  the  more  or  less  serious  modification  which  is  necessary 
to  bring  it  into  conformity  with  the  popular  sense  of  right. 

The  second  and  third  aims  of  legal  education,  as  here  difEerentiated,  only 
serve  to  teach  the  student  how  to  discover  for  himself  what  is  the  law,  while 
the  fourth  gives  him  an  opportunity  to  learn  how  to  make  a  practical  use  of 
his  legal  knowledge.  Legal  educators  may  differ  as  to  the  amount  of  time 
which  should  be  devoted  in  a  law  school  course  to  the  attainment  of  these  three 
elements  of  professional  education;  but  they  cannot  seriously  deny  that  the 
study  of  cases  is  the  only  method  by  which  this  instruction  may  be  imparted. 
Nor  can  there  be  much  cause  for  doubt  or  dispute  that  the  major  part  of  a  law 
school  course  must  be  devoted,  not  to  teaching  how  law  is  evolved,  or  how  to 
extract  the  law  from  adjudicated  cases,  or  how  to  apply  it  to  new  cases,  im- 
portant as  these  things  are,  but  to  teaching  what  is  the  law,  what  are  the  prin- 
ciples, genej-al  and  special,  which  give  logical  shape  to  all  systems  of  jurispru- 
dence. And  it  is  at  this  point  in  the  discussion  of  educational  methods,  that 
there  is  the  greatest  cause  for  contention. 

There  is  very  little  room  for  doubt  that,  at  least  in  the  Anglo-Saxon  world, 
the  adjudicated  cases  are  the  great  reservoir  of  legal  learning,  and  that  the 
original  investigator  must  go  to  these  cases  for  the  materials  out  of  which  he 
may  construct  our  jurisprudence,  or  satisfy  the  more  modest  desire  of  ascer- 
taining what  is  the  law  of  the  land  on  a  particular  subject.  But  he  would  use 
the  cases  not  for  the  purpose  of  learning  directly  from  them  what  is  the  law, 
but  to  discover,  as  the  scientific  investigator  hopes  by  his  experiments  with  the 
forces  of  nature,  the  fundamental  principles  underlying  the  concrete  manifest- 
ations of  their  influence.  If  the  chemist  or  physicist,  or  biologist,  wants  to 
learn  what  is  already  known  about  their  respective  sciences,  he  goes  to  the 
treatises  in  which  are  recorded  the  results  of  the  investigations  of  others.  He 
does  not  open  the  book  of  nature,  and  expect  to  find  therein  the  principles  set 


VIU  INTRODUCTION. 

forth  in  such  intelligible  terms  as  that  he  who  runs  may  read.     He  goes  to  his 
library,  instead  of  to  his  laboratory. 

The  adjudicated  cases  constitute  nothing  more  than  materials  out  of  which 
the  scientific  jurist  is  to  construct  a  science  of  jurisprudence.  They  are  not 
law  in  themselves,  they  are  but  applications  of  the  law  to  particular  cases. 
Law  is  not  made  by  the  courts,  at  the  most  only  promulgated  by  them.  Any 
one  who  believes  that  judges  are  free  agents  in  the  rendition  of  decrees  and 
judgments,  may  be  inclmed  to  question  the  soundness  of  the  last  proposition. 
But  he  who  is  fully  persuaded  that  law  is  not  the  independent  creation  of  the 
judicial  mind,  but  is  the  resultant  of  the  social  forces  reflecting  the  popular 
sense  of  right,  will  readily  give  his  assent.  The  judge  is  but  an  instrument  for 
the  promulgation  of  this  popular  sense  of  right  in  its  particular  application  to 
the  cause  at  issue.  When  I  first  met  with  the  proposition,  which  is  so  often 
enunciated  by  legal  writers,  as  a  proper  and  satisfying  explanation  of  the  rela- 
tion of  statutory  law  and  "  judge-made  "  law,  as  Bentham  contemptuously  calls 
it,  that  the  judge,  in  rendering  a  decision  on  a  novel  question,  or  in  modifying 
a  principle  of  law  which  has  been  previously  enunciated,  does  not  make  law  but 
only  declares  what  was  the  pre-existing,  although  perhaps  as  yet  unexpressed, 
law  —  I  was  inclined  to  repudiate  the  doctrine  altogether  as  a  fiction,  and  to 
give  my  approval  to  Bentham's  criticism  of  this  judicial  liberty.  But  when  I 
looked  deeper  into  the  origin  of  the  law,  and  satisfied  myself  that  all  law,  so 
far  as  it  constituted  a  living  rule  of  civil  conduct,  whether  it  taiies  the  form  of 
statute  or  of  judicial  decision,  is  but  an  expression  of  the  popular  sense  of 
right  through  the  popular  agents,  the  legislator  or  the  judge  as  the  case  may 
be  —  then  a  new  light  was  thrown  upon  what  I  was  inclined  to  pronounce  an 
unwarrantable  fiction,  and  I  believed  all  the  more  firmly  that  neither  the  judge 
nor  the  legislator  makes  living  law,  but  only  declares  that  to  be  the  law,  which 
has  been  forced  upon  them,  whether  consciously  or  unconsciously,  by  the  pres- 
sure of  the  popular  sense  of  right,  that  popular  sense  of  right  being  itself  but 
the  resultant  of  the  social  forces  which  are  at  play  in  every  organized  society. 

If  this  be  the  true  conception  of  the  origin  and  development  of  law,  then  it 
must  be  conceded  that  learning  what  principles  of  law  have  been  given  birth  or 
have  been  more  or  less  modified  in  a  particular  decision  or  set  of  decisions  is 
not  an  elementary  work  which  may  be  intrusted  to  beginners,  or  which  law 
students,  at  least  in  the  earlier  stages  of  their  professional  training,  may  be 
expected  to  do  satisfactorily  to  themselves  and  to  their  teachers.  In  the  first 
place,  the  whole  law  or  any  appreciable  part  of  it,  on  a  particular  subject,  can- 
not be  learned  from  the  study  of  a  few  leading  cases,  but  only  from  a  very 
large  number  of  cases.  For  example,  in  order  to  learn  the  law  in  relation  to  the 
requirements  of  the  statute  of  frauds,  one  would  have  to  read  not  a  few  cases, 
but  thousands  of  cases.  To  teach  law  by  cases,  —  granting  for  the  present  that 
it  is  possible  to  teach  law  as  a  science  by  cases  alone  —  it  would  require  an 
incredible  length  of  time  to  teach  even  the  elementary  law. 

But  apart  from  the  physical  impossibility  of  reading  enough  cases  in  order  to 
enable  the  student  to  learn  the  law  in  the  time  to  which  the  exegencies  of  Amer- 
ican life  require  a  law  school  course  to  be  limited,  the  legal  tyro  is  not  mentally 
capable  of  extracting  the  principles  of  the  law  from  adjudicated  cases,  even 
though  he  be  a  college  bred  man,  and  possessed  of  more  than  the  average  of 
ability  and  industry.     A  few  m  'U  of  extraordinary  mental  powers  maybe  able 


INTRODUCTION.  IX 

to  collect  together  and  formulate  correctly,  by  the  study  of  cases  alone,  the  prin- 
ciples upon  which  the  adjudications  rest,  but  the  average  student  will,  by  such 
a  system  of  instruction,  if  pursued  exclusively,  be  impressed  with  the  great 
weight  of  judicial  precedent,  and  he  will  become,  what  is  so  generally  depre- 
cated, a  case-lawyer,  who  thinks  the  whole  business  of  advocacy  consists  of 
persuading  the  court  that  the  cases  he  cites  in  support  of  his  side  of  the  con- 
troversy, are  to  be  followed,  not  because  they  enunciate  a  profound  scientific 
truth,  but  merely  because  they  have  given  judgment  for  the  plaintiff  or  defend- 
ant on  a  similar  statement  of  facts.  The  higher  aim  of  their  instructors  to 
make  of  them  conspicuously  original  Investigators  in  the  law  is  lost  on  the 
average  law  students.  Law  students,  in  the  present  state  of  public  opinion, 
are  inclined  to  consider  rules  of  law,  as  they  are  enunciated  by  the  court,  as 
distinct  and  independent  propositions,  which  may  be  strung  together  in  a 
digest  in  some  more  or  less  orderly  manner,  but  which  have  no  logical  connec- 
tion, leading  up  to  the  formation  of  a  compact  scientific  system  of  jurispru- 
dence. And  it  strikes  me  that  this  evil,  so  far  at  least  as  the  average  student  is 
concerned,  will  be  intensified  by  telling  him  that  he  must  learn  the  law  from 
the  capes  alone.  The  average  student  will  not  do  the  necessary  work  in  order 
to  be  able  to  construct  for  himself,  out  of  the  mass  of  judicial  decisions,  an 
orderly  and  logical  presentation  of  the  fundamental  principles,  which  are  the 
groundwork  of  every  system  of  jurisprudence,  and  a  knowledge  of  which  is 
absolutely  essential  to  any  scientific  conception  of  the  law  as  a  whole,  or  in  the 
detailed  application  to  special  cases  in  actual  practice. 

If  it  taxes  the  mental  energies  of  the  most  experienced  and  skillful  of  our 
law  writers  to  present  accurately  and  logically  the  law  on  a  given  subject,  so 
as  to  guide  and  not  to  mislead  the  active  practitioner  and  judge  in  the  winning 
and  settlement  of  judicial  contests,  we  certainly  cannot  expect  the  student  to 
do  this  work  satisfactorily  or  accurately.  One  of  the  most  successful  of  our 
American  legal  authors  once  observed  in  ray  presence  that  he  often  found  it  im- 
possible to  discover  the  common  principle  by  which  conflicting  decisions,  even 
of  the  same  court,  may  be  reconciled.  He  did  not  refer  to  cases  in  which  there 
was  a  direct  repudiation  of  a  prior  decision,  but  to  those  cases  in  which  there 
was  an  express  or  implied  confirmation  of  the  prior  decision,  but  with  so  great 
a  departure  in  practical  results,  as  to  force  one  at  least  to  the  conclusion,  that 
the  latter  decision  imposes  a  serious  modification  of  the  rule  of  law  as  laid 
down  in  the  prior  decision.  To  present  in  a  clear  light  the  rule  of  law,  as  it 
emerges  in  a  modified  form,  from  the  clashing  interests  represented  by  two  or 
more  decisions  requires  the  skill  and  leisure  of  the  experienced  legal  author. 
The  busy  practitioner  has  not  the  time,  and  the  tyro  has  not  the  skill  or  expe- 
rience to  enable  him  to  escape  the  confusion  of  ideas  which  the  reading  of 
conflicting  decisions  occasions. 

But  even  if  the  student  is  capable  of  doing  this  work  from  which  old  prac- 
titioners shrink,  why  should  he  be  forced  to  learn  the  law  exclusively  in  this 
laborious  and  difficult  manner?  Must  he  be  denied  the  privilege,  which  the 
students  of  medicine,  chemistry  and  the  other  sciences  enjoy,  of  learning  at 
the  outset  of  his  study  from  treatises  what  other  original  investigators  have 
discovered?  Like  the  student  of  the  different  sciences,  the  law  student  must 
learn  how  to  make  original  investigations  for  himself,  and  diagnose,  so  to 
speak,  the  principles  of  law  from  the  cases  in  actual  litigation.    But  no  reason 


X  INTRODUCTION. 

can  be  given  why  he  must  learn  the  whole  science  of  the  law  by  his  own  inves- 
tigations in  the  undigested  mass  of  raw  material  in  the  shape  of  adjudicated 
cases.  No  medical  school  can  pretend  to  give  a  complete  course  of  instruction 
at  the  present  day,  without  introducing  into  its  curriculum  a  comprehensive 
course  of  clinics.  Nor  does  the  professor  of  physics  or  chemistry  teach  these 
sciences  exclusively  by  the  use  of  the  text-books  and  pictorial  representations 
of  the  various  experiments  as  was  once  the  practice.  But  the  instructors  of 
these  sciences  have  not  discarded  the  treatise;  they  have  only  supplemented 
the  use  of  the  treatise  with  the  resort  to  the  laboratoi-y  and  operating  room. 

The  difficulty  in  reaching  a  common  agreement  in  the  preseut  discussion  over 
methods  and  means  of  legal  instruction  is  the  difficulty  which  is  often  experi- 
enced in  finding  the  middle  and  true  ground  of  a  controversy.  Impressed  by 
the  defects  of  the  older  systems  of  instruction,  in  which  the  law  student  was 
presented  with  more  or  less  abstract  propositions  of  law,  with  the  aid  of  text- 
books, which  often  were  either  nothing  more  than  digests  of  the  cases,  and  put 
together  in  an  illogical  and  disorderly  mangier,  or  whose  statements  of  the  law 
were  so  loose  and  inaccurate  as  to  prove  tuisleading;  and  more  impressed  with 
the  necessity  of  "  legal  clinics  "  in  the  course  of  instruction  in  the  law  school 
instead  of  being  left  for  acquisition  in  the  law  office,  the  advocates  of  instruc- 
tion by  cases  have  gone  to  the  opposite  extreme  of  placing  too  high  a  value 
upon  the  study  of  cases,  and  of  unduly  depreciating  the  value  of  the  study  of 
theoretic  law,  apart  from  learning  it  through  the  medium  of  practical  law.  But 
notwithstanding  their  undue  appreciation  of  the  study  of  cases,  they  tacitly 
concede  its  inefficiency  as  a  sole  means  of  learning  the  law,  by  accompanying 
the  study  of  the  cases  with  a  glossary  or  commentary  of  that  part  of  the  law, 
which  is  treated  in  the  cases.  The  cases  are  therefore  used  merely  as  illustra- 
tions of  the  law  which  is  set  forth  in  the  commentary,  which  is  either  given  to 
the  student  in  printed  form  or  imparted  by  the  professor  in  his  class-room  in- 
struction. If  the  commentary  consists  of  a  scientific  and  logical  treatment  of 
the  branch  of  law  selected,  corresponding  to  the  methods  adopted  by  the  better 
legal  treatises  of  modern  times,  the  instruction  by  cases  differs  only  from  the 
instruction  with  the  aid  of  the  best  text-books,  in  that  the  illustrations  of  the 
law  constitute  the  text,  while  the  law  is  put  into  foot  notes,  and  has  the  disad- 
vantage of  misleading  the  student  as  to  what  is,  and  what  is  not  the  nature  of 
the  law.  If  the  glossary  or  commentary  is  nothing  more  than  a  digest  of  the 
cases  for  which  space  could  not  be  found  in  the  text,  then  the  employment  of 
such  a  book  in  a  class-room  instruction  will  not  avoid  many  of  the  evils  which 
were  complained  of  under  the  older  regime. 

The  advocates  of  instruction  by  the  use  of  cases  have  effected  an  important 
reform  in  legal  education  by  arousing  the  law  schools  of  the  country  to  the 
importance  of  infusing  more  life  into  their  instruction,  and  of  introducing  into 
their  curricula  what  I  would  call  "  legal  clinics,"  and  for  this  great  good  the 
legal  profession  should  be  grateful  to  them.  But  the  great  danger  of  driving 
out  of  the  schools  all  scientific  study  of  the  fundamentals  of  the  law  in  the 
unchecked  study  from  the  cases  of  isolated  propositions  of  the  law,  ought  not  to 
be  lost  sight  of.  I  think  we  may,  in  this  connection,  consider  with  profit  the 
order  of  legal  instruction  pursued  at  the  German  universities.  In  the  first  half 
of  their  three  years'  course,  the  student  gets  nothing  but  theoretic  and  rela- 
tive elementary  law,  which  he  gleans  from  the  lectures  of  the  professor  and 


INTRODUCTION.  XI 

from  treatises,  corresponding  to  the  English  and  American  text-book.  The 
same  course  of  instruction  is  maintained  to  the  end  of  the  university  course, 
except  that  the  seminarium  is  added,  in  which  the  student  gets  his  first  insight 
into  practical  law,  and  where  the  method  of  instruction  is  practically  a  study 
of  law  by  cases,  except  that  the  cases  are  in  the  main  hypothetical.  When  the 
student  receives  his  doctorate,  he  is  enrolled  among  the  officials  of  the  court  as 
a  referenda}',  performing  duties  as  an  assistant  to  the  judges,  which  are  calcu- 
lated to  give  him  the  practical  experience  which  is  aimed  at  by  the  law  in  many 
of  the  American  States  in  requiring  of  candidates  for  the  bar  an  appi'enticeship 
or  clerkship  in  a  practicing  lawyer's  office. 

If  I  were  called  upon  to  establish  a  course  of  legal  instruction,  I  would  follow 
the  German  methods  as  nearly  as  the  situation  and  public  opinion  in  America 
would  allow.  I  would  make  the  course  in  the  law  school  three  years.  During 
the  first  year,  I  would  confine  the  student  to  the  study  of  the  fundamental  prin- 
ciples of  the  law  with  the  aid  of  the  most  approved  treatises,  and  without  any 
resort  to  cases,  except  by  the  instructor,  who  would  use  them  in  the  class- 
room for  the  purpose  of  illustrating  the  text.  The  second  year  would  be  in 
the  main  similar  to  the  course  of  instruction  of  the  first  year,  with  a  partial 
introduction  of  *•  legal  clinics  "  and  of  the  seminary  methods.  In  the  third 
year  the  instruction  would  largely  consist  of  the  study  of  cases,  and  of  practice 
and  pleading. 

During  the  entire  course  in  the  law  school  I  would  place  the  ban  upon  the 
resort  of  the  student  to  the  law  ofliice.  His  clerkship  in  the  law  office  should 
begin  upon  his  graduation  from  the  law  school. 

Although  the  views  here  presented,  reflect  no  one's  opinions  but  my  own  I 
desire  to  say  in  conclusion  that,  in  the  University  of  the  City  of  New  York,  of 
whose  faculty  I  am  a  member,  no  one  method  of  instruction  is  followed  exclu- 
sively; all  methods  are  in  turn  adopted  so  far  as  they  seem  to  serve  the  purpose 
of  making  lawyers  out  of  the  young  men  who  come  to  us;  and  each  professor  is 
permitted  to  adopt  whatever  methods  will  enable  him  to  give  the  best  expression 
to  bis  own  individuality. 


TABLE  OF  CONTENTS. 


PAGES. 

CHAPTER  I.—  What  is  Real  Property 1-11 

CHAPTER  III.— Estate  IN  Fee  Simple 12-28 

CHAPTER  IV.—  Estates  Tail 29-40 

CHAPTER  v.— Estates  FOR  LIFE 41-52 

CHAPTER  VI. —  Estates  Arising  out  of  Marital  Relations  .     .     .      53-97 

CHAPTER  VII.—  Estates  for  Years 98-153 

CHAPTER  VIII.— Joint  Estates 154-209 

CHAPTER  IX. —  Estates    Upon    Condition   and   Limitation    and 

Conditional  Limitations 210-233 

CHAPTER  X.—  Mortgages 234-300 

CHAPTER  XL— Reversion 301-310 

CHAPTER  XIL— Remainders 311-365 

CHAPTER  XIIL— Uses  AND  Trusts 366-392 

CHAPTER  XIV.—  Executory  Devises 393-432 

CHAPTER  XV.— Powers  of  Appointment 433-467 

CHAPTER  XVI. —  Incorporeal  Hereditaments  —  Commons  —  Ease- 
ments —  Franchises  —  Rents 468-506 

CHAPTER  XVII. —  Licenses 506-521 

CHAPTER  XX. —  Title  by  Original  Acquisition,  Including  Ac- 
cretion, Adverse  Possession,  Statute  of  Limitations,  Estop- 
pel, Abandonment 522-587 

CHAPTER  XXL —  Title   by   Grant  —  Public   Grant  —  Involving 

Alienation  —  Private  Grant 588-617 

CHAPTER  XXII. —  Deeds  —  Their    Requisites    and    Component 

Parts,  Including  Covenants  of  Title 618-735 

CHAPTER  XXIIL— Wills 736-771 

(xii) 


TABLE  OF  CASES  REPORTED. 


PAGE 

Allen  t).  Kennedy,  91  Mo.  324;  2 

S.  W.  142.  725 

Babcock  ■».  Collins,  60   Minn.  73; 

61  N.  W.  1020.  625 

Barlow  t).  Dahra,  97  Ala.  414;  12 

So.  293.  136 

Benton  v.   Perry,  146   111.  71;  34 

N.  E.  60.  177 

Booker  V.  Tar  water,  138  Ind.335; 

37N.E.  979.  631 

Boon  Co.  V.  Patterson,  98  U.  S. 

403.  596 

Bowenv.  Chase,  94  U.  S.  812.  459 

Bozarth  v.  Sargent,  128  111.  95;  21 

N.  E.  218.  53 

Brandon  u.  Carter,  119  Mo.   572; 

24  S.  W.  1035.  388 

Brattle   Sq.  Church  v.    Grant,    3 

Gray, 142.  393 

Bryant  v.  Vincent.  100  Mich.  426; 

59  N.  W.  169.  140 

Buckey  v.  Buckey,  38  W.  Va.  168; 

18S.E.383.  618 

Buffington  v.  Maxam,  152  Mass. 

477;  25  N.  E.  975.  377 

Burdette  v.  May,  100  Mo.  13;  12 

S.  W.  1056.  379 

Carson  V.  Fuhs,  131  Pa.  St.  256; 

18  A.  1017.  355 

Cartwrightu.  Cartwright,  1  Philli- 

more,   90.  744 

Chapin  v.  Crow,  147  111.  219;  35 

N.  E.  536.  349 

ChilderstJ.  Schantz,  120  Mo.  305; 

25S.  W.  209.  601 

Cihaku.  Kleke,  117  111.  643;  7  N. 

E.  111.  480 


PAGE 

Claiborne  v.  Radford,  91  Va.  527; 

22  S.  E.  348.  736 

Collins  V.  Chartiers  Val.  Gas  Co., 

131  Pa.  St.  143;  18  A.  1012  494 
Cook  V.  Bartholomew,   60  Conn. 

24;  22  A.  444.  249 

Copeland  v.  McAdory,    100   Ala. 

653;   13  So.  545.  714 

Cowell  V.  Springs  Co.,  100  U.  S. 

55.  213 

Coxey  V.  Springer,  138  Ind.  506;  37 

N.  E.  606.  334 

Crowell  u.  Keene,  159  Mass.  352; 

34  N.  E.  405.  234 

Crozier  v.  Bray,  120  N.  Y.  366;  24 

N.  E.  712.  318 

Dean  v.  Mumford,  102  Mich.  510; 

61  N.  W.   7.  418 

Doren  v.  Gillum,  136  Ind.  134;  35 

N.  E.  1101.  706 

Downing  v.  Mayes,  163  111.  330;  38 

N.  E.  620.  565 

Doyle  V.  Union  Pac.  Ry.,147U.  S. 

413.  112 

Dreutzer  v.  Baker,  60  Wis.  179;  18 

N.  W.  776.  637 

Duncombe  tJ.  Felt,  81    Mich.  332; 

45  N.  W.  1004.  49 

Dwight  V.  Hayes,  150  111.  273}  37 

N.  E. 218.  506 

Edgerton  v.   McMuUan,  55   Kan. 

90;  39  P.  1021.  490 

Emeric  V.  Alvarado,  90   Cal.  444; 

27  P.  356.  684 

Equitable  Life   Ass.    Soc.   of  the 

United  States  v.  Bostwich  et 

al.,  100  N.  Y.  628.  279 

(xiii) 


XIV 


TABLE   OF   CASES   REPORTED. 


PAG 

Eversole  v.  Early,  80  Iowa,  601 ; 

44N.  W.  897.  719 

Ewing  V.  Shannahan,  113  Mo.  188; 

20  S.  W.  1065.  18 

Faber  v.  Police,  10  S.  C.  376.  367 

Filson  V.  Simshauser,  130  111.  649; 

22  N.  E.  835.  570 

Foster  v.  Hackett,  112  N.  C.  546; 

17S.  E.426.  344 

Fox  V.  Mission  Free  School,  120 

Mo.  349;  25  S.  W.  172.  498 

Freelancl  v.  Kitz,  154  Mass.  257; 

28  N.  E.  226.  101 

Garibaldi  v.  Shattuck,70  Cal.  511; 

11  P.  778.  579 

Godmanu.  Simmons,  113  Mo.  122; 

20  S.  W.  972.  361 

Goodard  v.  Wincliell,  86  Iowa,  71; 

52  N.  W.  1124.  530 

Goodpasters  v.  Leathers,  123  Ind. 

121;  23  N.  E.  1090.  662 

Gould  V.  Howe,  131  111.  490 ;  23  N. 

E.  602  711 

Greenwood  v.  Marvins,  111  N.  Y. 

228.  169 

Hale  V.  Hale,  125  111.  399;  17  N.  E. 

470.  423 

Hanks  v.  Folsom,  11  Lea,  555.  373 

Happ  V.  Happ,  156  111.  183;  41  N. 

E.  39.  582 

Harris  v.  Scovel,  85  Mich.  32;  48 

N.  W.  173.  1 

Havens  v.  Seashore  Land  Co.,  47 

N.  J.  Eq   365;  20  A.  497.  606 

Hayward  v  Kinney,  84  Mich.  591 ; 

48N.  W.  170.  41 

Henderson  v.  Hunter,  69  Pa.   St. 

335.  227 

Hinchcliffe  v.  Shea,  103  N.  Y.  153; 

8  N.  E.  477.  68 

Hitchcock  V.  Simpkins,  99  Mich. 

198;  59  N.  W.  47.  331 

Horton  v.  Jenks,  96  Mich.  13;  55 

N.  W.  372.  46 

Hughes  V.  Nichlas,  70  Md.  486 ;   17 

A.  398.  429 


PAGE 

Hutchins  v.  "Van  Vecliten,  140  N. 

Y.  115;  35  N.  E.  446.  384 

Ingalls  V.  Hobbs,  156  Mass.  348; 

31  N.  E.  286.  126 

Ingels  V.  Ingels,  50  Kan.  755;  32 

P.  387.  92 

In  re  Hunt's  Will,  110  N.  Y.  278; 

18N.  E.  106.  751 

In  re  Walter's  Will,  64  Wis.  487; 

25  N.  W.  538.  740 

Jones  V.  Fleming,  104  N.  Y.  418; 

10  N.  E.  693.  72 

Kellett  V.  Shepard,  139  111.  423.  301 
Kennedy  v.  Moore,  91  Iowa,  39; 

58  N.  W.  1066.  284 

King  V.  Kilbride,  58  Conn.  109;  19 

A.  519.  721 

King  V.  McCarthy,  50  Minn.  222; 

52N.  W.648.  237 

Lake  Erie  &  W.  Ry.  Co.  v.  Whit- 
ham,  155  III.  514;  49  N.  E. 
1014.  669 

Lanahan  v.  Lawton,  50  N.  J.  Eq. 

276;  23  A.  476.  244 

Lanier  v.  Mcintosh,  117  Mo.  508; 

23  S.  W.  787.  295 

Lawrence  v.  Springer,  49  N.  J.  Eq. 

289;  24  A.  933.  512 

Lehndorf  v.  Cope,  122  111.  317;  13 

N.  E.  505.  29 

Lindley  v.   Martindale,   78   Iowa, 

379;  43  N.  W.  238.  663 

Macauley  v.  Smith,  132  N.  Y.  624; 

30  N.  E.  997.  239 

Magee  v.  Allison,  94  (?)  Iowa —  ; 

63N.  W.  322.  649 

Magie   v.  Reynolds,  61  N.  J.  Eq. 

113;  26  A.  150.  266 

Mann  v.  Jackson,  84  Me.  400;  24 

A.  886.  217 

McGeeu.  Hall,  26  S.  C.  179;  1  S.E. 

711.  338 

McKaig  V.   McKaig,  50  N.  J.  Eq. 

325;   25  A.  181.  69 


TABLE    OF    CASES    REPORTED. 


XV 


PAGK 

McKenzie  v.  Sumner,    113   N.  C. 

426;  19  S.  E.  375.  3(;6 

McKissick  v.  Ashby,  98  Cal.  422; 

33  P.  729.  145 

McTigue  V.  McTigue.  11(5  Mo.  136; 

22  S.  W.  501.  61 
Mechanic.  Buntiug,  156  111.  586; 

41  N.  E.  175.  546 

Mead  v.  Maben,  131  N.  Y.  255;  30 

N.  E.  98.  408 

Mette  V.  Feltgen,   148   111.  357;  36 

N.  E.  81.  154 

Michigan    Mut.    L.    Ins.    Co.    v. 

Cronk,  93  Mich.  49;  52  N.  W. 

1035.  3 

Miller  v.  Meers,  155  111.  284;  40 

N.  E.  577.  653 

Miller?;.  Topeka  Land  Co.,  44  Kan. 

354;  24  P.  420.  681 

Mission  of  Immaculate  Virgin  v. 

Cronin,  143  N.  Y.  524;    38  N. 

E.  964.  538 

Moore  V.  Robbins,  96  U.  S.  530.  588 
Mulcahy  v.  Fenwick,   161   Mass. 

164;  36  N.  E.  689.  287 

Mut.  L.  Ins.  Co.  V.  Shipman,  119 

N.  Y.  324;  24  N.  E.  177.  454 

Nebraska  v.  Iowa,  143  U.  S.  359.  522 
Neely  v.  Hoskins,  84  Me.  386;  24 

A.  882.  223 

Newcomb  r.  Webster,  113   N.    Y. 

194;  21  N.  E.  77.  763 

Norris  v.  He,  152  111.  190;  38  N.  E. 

762.  551 

Oakes  v.  DeLancey,  133  N.  Y.  227; 

30  N,  E.  974.  679 

O'Neill  V.  Webster,  150  Mass.  572; 

23  N.  E.  235.  648 
Outlandu.  Bowen,  118  Ind.  150;  17 

N.  E.  281.  311 

Pharis  v.  Jones,  122  Mo.  125;  26  S. 

W.  1032.  535 

Phillips  V.  Sherman,  64  Me.  171.  493 

Pickens  v.  Davis,  134  Mass.  252.  766 

Pike  V.  Galvin,  29  M.  E.  183.  575 


PAGE 

Pinkum  y.  City  of   Eau   Claire,  81 

Wis.  301  ;   51  N.  W.  550.  468 

Plummer  v.  Hillside  Coal  &   Iron 

Co.,    160   Pa.    St.    483;  28  A. 

853.  9 

Post  V.  Weil,  115  N.  Y,  361 ;  22  N. 

E.  145.  728 

Potter  V.  Couch,  141  U.  S.  296.  433 
Prentice  v.  N.Pac.  Ry.  Co.,  154  U. 

S.  163.  695 

Probett  V.  Jenkinson,    106   Mich. 

475;  63  N.  W.  648.  691 

Riggs  V.  Palmer,  115  N.Y.  506;  22 

N  E. 189.  754 

Russell  V.  Fabyan,  34  N.  H.  218.      148 

Say  V.  Stoddard,  27  Ohio  St.  478.  138 
School  District  v.  Benson,  31  Me. 

381.  581 

Seaver  v.   Fitzgerald,   141   Mass. 

401;  6  N.  E.  73.  354 

Sexton   V.   Chicago   Storage    Co., 

129  111.  318;  21  N.  E.  929.  105 

Siddons  v.  Cockrell,  131   111.  653; 

23  N.  E.  586.  25,  327 

Sraeberg  v.  Cunningham,  96  Mich. 

378;  56  N.  W.  73.  548 

Snedeker    v.    Waring,    12   N.    Y. 

170.  4 

Smiths.  Kimball,  153  111.  368;  38 

N.  E.  1029.  412 

Smith  V.  Hitchcock,  38  Neb.   104; 

56  N.  W.  791-  540 

Smith  V.  Westfall,  76  Tex.  509;  13 

S.  W.  540.  668 

Snow  u.  Pulitzer,  142  N.  Y.    263; 

36  N.  E.  1059.  128 

Staigg  V.  Atkinson,  144  Mass.  564; 

12  N.  E.  354.  79 

Stein  V.  Dahm,  96  Ala.  481;  11  So. 

597.  484 

Stevens  v.  Pantlind,  95  Mich.  145; 

54N.  W.  716.  132 

Stewart  v.   Scott,  54  Ark.  187;  15 

S,  W.  463.  251 

Syms  V.  Mayor  of  New  York,  105 

N.  Y.  153;   11  N.  E.  369.  98 


XVI 


TABLE   OF   CASES   REPORTED. 


PAGE 

Thomae    v.  Thomae   (N.    J.   Eq. 

1889"),  18  A.  355.  411 

Thornburg  v.  Wiggins,  135  Ind. 

178;  34  N.  E.  999,  163 

Townsheud  v.  Thompson,  139  N. 

Y.  152;  34  N.  E.  891.  254 

Tredwell  v.  Inslee,  120  N.  Y.  458; 

24N.  E.651.  476 

Truesdell  v.  Lehman,  47  N.  J.  Eq. 

218;  20  A.  391.  12 

Turner  v.  Littlefield,  142  111.  680; 

32  N.  E.  522.  259 

Union  Mat.  Life  Ins,  Co.  v.  Han- 
ford,  143  U.  S.  187.  280 

Union  Trust  Co.  v.  Olmstead,  102 

N.  Y.  729;  7  N.  E,  822,  300 

Van  Cleaf  v.  Burns,  118  Mo.  649; 

23  N.  E.  881.  63 


PAGE 

Warren  v.  Warren,  148  111.  641 ;  36 

N.  E.  611.  83 

Watkins  v.  Green,  101  Mich.  493; 

60  N.  W.  44.  562 

Watson  V.  Wyman,  161  Mass.  96; 

36  N.  E.  692.  293 

Weart  v.  Cruser,  49  N.  J.  L.  475; 

13  A.  36.  36 

Weed  V.  Lindsay,  86  Ga.  686;  15 

S.  E.  836.  142 

Werayss  v.  White,  159  Mass.  484; 

34  N.  E.  718.  381 

Wheeler  v.  Smith,  62  Mich.  373; 

28  N.  W.  907.  585 

Wiswell  V.  Bresnahan,  84  Me.  397; 

24  A.  885.  210 

Wronlsow  v.  Oalsley,  133  N.  Y.  605; 

31 N. E.  629.  640 


SELECTED   CASES 

ON 

REAL    PROPERTY. 


CHAPTER   I. 

WHAT  IS  REAL  PROPERTY. 


Harris  v.  Scovel,  85  Mich.  32;  48  N.  W.  173. 
Michigan  Mut.  L.  Ins.  Co.  v.  Cronk,  93  Mich.  49;  52  N.  W.  702. 

Snedeker  v.  Waring,  12  N.  Y.  170. 
Plummer  v.  Hillside  Coal  &  Iron  Co.,  160  Pa,  St.  483;  28  A.  853. 

Fixtures  —  Permanent  Annexation. 

Harris  v.  Scovel,  85  Mich.  32;  48  N.  W.  173. 

Morse,  J.  This  is  an  action  in  trover  for  the  conversion  of 
2,000  fence  rails,  commenced  in  justice  court,  and  subsequently 
appealed  to  the  circuit  court  of  Wayne  County.  Plaintiff  re- 
covered judgment  in  both  courts.  The  plaintiff,  in  the  parti- 
tion of  real  estate,  February  6,  1886,  became  the  owner  of  a 
piece  of  land  17  feet  wide  and  1,601  feet  in  length.  There  was 
then  a  fence  on  the  land  which,  before  the  partition,  made  a 
lane.  She  sold  the  land  to  defendant  October  3,  1888.  The 
deed  of  conveyance  was  a  warranty  deed  in  the  ordinary  form. 
Having  do  use  for  a  lane  on  the  premises,  about  a  year  before 
she  sold  to  the  defendant  the  plaintiff  took  down  the  fence,  and 
piled  up  the  rails  on  the  premises,  intending,  as  she  testifies, 
to  remove  them  to  a  farm  that  she  owned  in  Deurborn.  She 
had  drawn  84  posts  upon  this  land,  and  made  some  prepara- 
tion to  build  a  board  fence  as  a  division  fence  between  her  land 
and  that  of  others,  as,  at  the  time  the  partition  was  made,  it  left 
the  premises  allotted  to  her  open  and  unfenced.     She  testified, 


2  WHAT    IS    REAL    PROPERTY. 

against  objection,  tiiat  at  the  time  she  made  the  agreement  with 
defendant  to  sell  him  the  land  she  reserved  the  rails.  There 
was  no  reservation  in  the  deed.  The  rails  prior  to  being  piled 
np  by  plaintiff,  had  been  in  this  lane  fence  nearly  50  years. 
Plaintiff  had  no  nse  for  the  lane  after  the  partition.  Defendant 
testified  that  plaintiff,  when  making  the  agreement  to  sell, 
wanted  to  reserve  the  rails,  but  he  would  not  consent  to  it,  and 
l>ought  the  place  as  it  was.  The  circuit  judge  submitted  the 
question  to  the  jury,  instructing  them  that  the  rails  piled  upon 
tlie  premises,  and  not  being  in  any  existing  fence  at  the  time  of 
the  sale,  were  personal  property,  and  that,  unless  they  found 
that  the  plaintiff  sold  the  rails  to  the  defendant  —  agreed  that 
they  should  go  with  the  land  —  she  was  entitled  to  recover. 
The  conrt  was  right,  and  the  judgment  must  be  aflSrmed. 
Kails  piled  up,  under  the  circumstances  that  these  were,  are 
personal  property.  There  can  be  no  claim  that  fence-rails  are 
of  necessity  part  of  the  realty  unless  they  are  in  a  fence,  and 
even  in  such  case  they  may  remain  as  personalty,  if  such  be  the 
agreement  between  the  parties  interested  at  the  time  the  fence 
is  built.  Curtis  V.  Leasia  (Mich.),  44  N.  W.  Rep.  500.  The 
contention  made,  that  plaintiff  is  estopped  from  claiming 
these  rails  because,  following  the  description  by  metes  and 
bounds  of  the  premises  in  her  warranty  deed  to  defendant,  the 
deed  continues  as  follows:  "Being  the  same  premises  which 
were  assigned  by  said  commissioners  in  partition  to  Mary  E. 
Harris,  *  *  *  together  with  all  and  singular  the  heredita- 
ments and  appurtenances  thereunto  belonging,"  etc.  It  is  ar- 
gued that  she  thereby  conveyed  these  rails,  because  they  were 
a  part  of  the  realty  when  she  received  it  in  partition.  We  do  not 
consider  this  statement  in  the  deed  to  be,  or  to  have  been  in- 
tended to  be,  a  covenant  that  the  premises  were  to  be  con- 
veyed to  defendant  in  exactly  the  same  condition  as  to  fences, 
timber,  and  growing  crops  as  they  were  when  she  received  them. 
Such  a  construction  would  be  absurd.  If  the  rails  must  pass 
under  the  warranty  because  of  this  clause,  then  she  must  also 
account,  under  such  warranty,  to  the  defendant  for  all  the 
timber  standing  or  crops  growing  upon  the  premises,  when  she 
received  them  by  partition,  which  she  may  have  removed  since 
that  time  and  before  the  sale  to  defendant.  The  deed  cannot 
in  reason  be  so  construed.  Affirmed,  with  costs.  The  other 
justices  concurred. 


i/ 


FIXTURES  —  ANNEXATION    BY   VENDEE   IN   POSSESSION. 


Title  to  House  Erected  by  Vendee  iu  Possession  under  Exe- 
cutory Contract  of  Sale  —  Vendee  Cannot  Remove  it  — 
Replevin  Lies  if  He  Does. 

Michigan  Mut.  L.  Ins.  Co.  v.  Cronlj,  93  Mich.  49;  52  N.  W.  1035. 

Montgomery,  J.  The  defendant,  on  the  18th  day  of  June, 
1887,  contracted  in  writing  to  purchase  of  one  William  L.  Jonks 
the  N.  W.  i  of  the  S.  W.  i  of  section  19,  township  7  N.,  range 
IG  E.  The  contract  was  in  the  usual  printed  form,  and  contained 
a  covenant  on  the  part  of  the  defendant  that  he  would  not  com- 
mit, or  suffer  any  other  person  to  commit,  any  waste  or  damage 
to  said  lands  or  buildings,  except  for  firewood  or  otherwise,  for 
home  use,  while  clearing  off  the  lands  in  the  ordinary  manner. 
Immediately  after  entering  upon  the  lands  he  erected  a  small 
dwelling  house  thereon,  and  lived  in  it  for  two  years.  He  then 
made  default  in  his  payments,  and  the  plaintiff,  to  whom  the 
contract  had  in  the  meantime  been  assigned  by  Jenks,  terminated 
the  contract,  and  required  the  defendant  to  surrender  possession. 
The  house  was  a  one-story  frame  house,  20  by  26,  and  suitable 
for  the  purposes  of  a  dwelling  house  to  be  used  upon  the  land  in 
question.  After  the  removal  of  the  house  from  the  premises,  it 
was  placed  upon  a  lot  across  the  street,  and  plaintiff,  after  de- 
mand, brought  replevin.  The  circuit  judge  directed  a  verdict 
for  the  plaintiff,  and  the  defendant  appeals. 

Two  questions  only  are  presented  in  appellant's  brief.  It  is 
first  claimed  that  replevin  will  not  lie,  because  the  house  had 
become  a  fixture  upon  the  land  to  which  it  was  moved,  and  was, 
therefore,  real  estate;  second,  that,  as  the  house  was  occupied  as 
a  homestead  by  the  defendant  and  his  family,  the  wife  was  a 
necessary  party.  We  think  that  when  this  house  was  erected 
upon  the  land  held  under  contract  it  became  a  part  of  the  realty, 
and  as  such  the  property  of  the  owner  of  the  land,  subject  only 
to  the  rights  of  the  purchaser  therein.  Kingsley  v.  McFarland 
(Me.),  19  Atl.  Rep.  442;  Milton  v.  Colby,  5  Mete.  (Mass.)  78; 
Iron  Co.  V.  Black,  70  Me.  473  ;  Tyler  Fixt.  78.  It  being  sev- 
ered from  the  land,  it  became  personal  property,  and  replevin 
would  lie  unless  it  became  aflixed  to  the  realty  by  the  tortious 
act  of  the  defendant  in  removing  it  and  placing  it  upon  other 
lands.  But  we  think  no  such  legal  effect  can  be  given  to  the  de- 
fendant's  wrong.  The  house  was  moved  upon  the  land  of  a  third 
party.  There  was  no  privity  of  title  between  the  ownership  of 
the  house  and  the  ownership  of  the  land  to  which  it  was  removed. 
The  cases  cited  by  defendant  of  Morrison  v.  Berry,  42  Mich.  389; 
4  N.  W.  Rep.  731;  and  Wagar  v.  Briscoe,  38  Mich.  587,  do  not 


WHAT    IS    REAL    PROPERTY. 


apply.  The  house  remaining  personal  property  in  the  wronojful 
possession  of  defendant,  it  follows  that  no  homestead  right, 
which  consists  in  an  interest  in  hinds,  attached. 

The  judgment  is  aflSrmed,  with  costs.     The  other  justices  con- 
curred. 


Constructive  Annexation    of    Fixture  —  Statue    and   Sun-dial 
located  upon  a  Lawn  for  Ornamental  Purposes. 

Snedeker  v.  Waring,  12  N.  Y.  170. 

Parker,  J.  The  facts  in  this  case  are  undisputed,  and  it  is 
a  question  of  law  whether  the  statue  and  sun-dial  were  real  or 
personal  property.  The  plaintiffs  claim  they  are  personal 
property,  having  purchased  them  as  such  under  an  execution 
against  Thorn.  The  defendant  claims  they  are  real  property, 
having  bought  the  farm  on  which  they  were  erected  at  a  fore- 
closure sale  under  a  mortgage,  executed  by  Thom  before  the 
erection  of  the  statue  and  sun-dial,  and  also  as  mortgagee  in 
possession  of  another  mortgage,  executed  by  Thom  alter  their 
erection.  The  claim  of  defendant  under  the  mortgag-e  sale  is 
not  impaired  by  the  fact  that  the  property  in  controversy  was 
put  on  the  place  after  the  execution  of  the  mortgage.  Corliss 
V.  Van  Sagin,  29  Me.  115;  Winslow  v.  Merchants'  Ins.  Co.,  4 
Mete.  306.  Permanent  erections  and  other  improvements  made 
by  the  mortgagor  on  the  land  mortgaged  become  a  part  of  the 
realty,  and  are  covered  by  the  mortgage. 

In  deciding  whether  the  property  in  controversy  was  real  or 
personal,  it  is  not  to  be  considered  as  if  it  were  a  question 
arising  between  landlord  and  tenant,  but  it  is  governed  by  the 
rules  applicable  between  grantor  and  grantee.  The  doubt 
thrown  upon  this  point  by  the  case  of  Taylor  v.  Townsend,  8 
Mass.  411,  is  entirely  removed  by  the  latter  authorities,  which 
hold  that,  as  to  fixtures,  the  same  rule  prevails  between  mort- 
gagor and  mortgagee  as  between  grantor  and  grantee.  15  Mass. 
159;  4  Mete.  306  ;  3  Edw.  Ch.  R.  246;  Hilliard  on  Mortgages, 
294,  note  f,  and  cases  there  cited ;  and  see  Bishop  v.  Bishop,  11 
N.  Y.  123,  126. 

Governed,  then,  by  the  rule  prevailing  between  grantor  and 
grantee,  if  the  statue  and  dial  were  fixtures,  actual  or  construct- 
ive, they  passed  to  the  defendant  as  part  of  the  realty. 

No  case  has  been  found  in  either  the  English  or  American 
courts  deciding  in  what  cases  statuary  placed  in  a  house  or  in 
grounds  shall  be  deemed  real  and  in  what  cases  personal  prop- 
erty.    This    question    must,    therefore,    be    determined    upon 


FIXTURES  —  CONSTRUCTIVE    ANNEXATION.  0 

principle.  All  will  agree  that  statuary  exposed  for  sale  in  a 
workshop,  or  whatever  it  may  be  before  it  shall  be  permanently 
placed,  is  personal  property;  nor  will  it  be  controverted  that 
where  statuary  is  placed  upon  a  building,  or  so  connected  with  it 
as  to  be  considered  part  of  it,  it  will  be  deemed  real  property, 
and  pass  with  a  deed  of  the  land.  But  the  doubt  in  this  case 
arises  from  the  i)eculiar  position  and  character  of  this  statue,  it 
being  placed  in  a  court-yard  before  the  house,  on  a  base  erected 
on  an  artiticial  mound  raised  for  the  purpose  of  supporting  it. 
The  statue  was  not  fastened  to  the  base  by  either  clamps  or 
cement,  but  it  rested  as  tirmly  on  it  by  its  own  weight,  which 
was  three  or  four  tons,  as  if  otherwise  affixed  to  it.  The  base 
^as  of  masonry,  the  seams  being  pointed  with  cement,  though 
the  stones  were  not  laid  in  either  cement  or  mortar,  and  the  mound 
was  an  artificial  and  permanent  erection,  raised  some  two  or 
three  feet  above  the  surrounding  land,  with  a  substantial  stone 
foundation. 

If  the  statue  had  been  actually  affixed  to  the  base  by  cement 
or  clamps,  or  in  any  other  manner,  it  would  be  conceded  to  be 
a  fixture,  and  to  belong  to  the  realty.  But  as  it  was  it  could 
have  been  removed  without  fracture  to  the  base  on  which  it 
rested.  But  is  that  circumstance  controlling?  A  building  of 
wood,  weighing  even  less  than  this  statue,  but  resting  on  a  sub- 
stantial foundation  of  masonry,  would  have  belonged  to  the 
realty.  A  thing  may  be  as  firmly  affixed  to  the  land  by  gravita- 
tion as  by  clamps  or  cement.  Its  character  may  depend  much 
upon  the  object  of  its  erection.  Its  destination,  the  intention  of 
the  person  making  the  erection,  often  exercises  a  controlling 
influence,  and  its  connection  with  the  land  is  looked  at  prin- 
cipally for  the  purpose  of  ascertaining  whether  that  intent  was 
that  the  thing  in  question  should  retain  its  original  chattel 
character,  or  whether  it  was  designed  to  make  it  a  permanent 
accession  to  the  lands. 

By  the  civil  law,  columns,  figures  and  statues  used  to  spout 
water  at  fountains,  were  regarded  as  immovable,  or  real.  Pan- 
dects, lib.  19,  tit.  1,§  17,  vol.  7,by  Pothier,  107;  though  it  was 
inferred  that  statues  resting  on  a  base  of  masonry  were  not 
immovable,  because  they  were  there,  not  as  part  of  the  con- 
struction, but  as  ornaments.  Corp.  Juris.  Civ., by  Kreigel,  lib.  19, 
tit.  1,  §  17;  Poth.  Pand.  109;  Burrill's  Law  Die.  "  Affixns." 
But  Lubeo  held  the  rule  to  be  "  ea  qucE  perpetui  iisus  causa  in 
cedificiifi  sunt  oedificii  esse;  quce  ve.ro  ad  prcesenSt  non  esse 
cedijicii;  "  thus  making  the  kind  of  property  depend  upon 
the  question  whether  it  was  designed  by  the  proprietor  to  be 
permanent  or  temporary,  or,  as  it  was  generally  called  by  the 


6  "WHAT    18    KEAL  rUOPERTY. 

civilians,   "its  destination;"   Corp.  Jiir.   Civ.,  by  Kreigel,  lib. 
19,  tit.  1,  §  17. 

And  Pothier  says  that  when,  in  the  construction  of  a  large 
vet'tibule  or  hall  niches  arc  made,  the  statues  attached  ("al- 
tachees  ")  to  those  niches  make  part  ot"  the  house,  for  they  are 
placed  there  ad  integrandam  domum.  They  servo  to  complete 
that  })art  of  the  house.  Indeed,  the  niches  being  made  oidy  to 
receive  the  statues,  there  will  fail  to  be  anything  in  the  vestibule 
without  the  statues;  and,  ho  says,  it  is  of  such  statues  that  we 
must  understand  what  Papimanus  says:  *'  Sigilla  et  staluce 
affixcB,  inslrumento  domus  non  continentnr,  sed  domus  portio 
sunt:  Pothier  de  Communante,  §  56. 

By  the  French  law,  statues  ])l;iccd  in  a  niche  made  expressly 
to  receive  them,  though  they  could  be  removed  without  fracture 
or  deterioration,  aie  immovable,  or  part  of  the  realty.  Code 
Nap,,  §  525.  But  statues  standing  on  pedestals  in  houses, 
court-yards,  and  gardens  retain  their  character  of  '*  movable  " 
or  personal.  3  Touillier,  Droit  Civil  de  France,  12.  This  has 
reference  to  statues  only  which  do  not  stand  on  a  substantial 
and  permanent  base  or  separate  pedestal  made  expressly  for 
them.  For  when  a  statue  is  placed  on  a  pedestal  or  base  of 
masonry  constructed  expressly  for  it,  it  is  governed  by  the  same 
rule  as  when  placed  in  a  niche  made  expressly  to  receive  it,  and 
is  immovable.  2  Re'pertoire  Generale,  Journal  du  Palais,  by 
Ledru  Rollin,  518,  §  139.  The  statue  in  such  case  is  regarded 
as  making  part  of  the  same  thing  with  the  permanent  base  upon 
which  it  rests.  The  reasons  for  the  French  law  upon  this  sub- 
ject are  stated  by  the  same  author  in  the  same  work,  page  517, 
§  129,  where  the  rule  is  laid  down  with  regard  to  such  ornaments 
as  mirrors,  pictures,  and  statues,  tiiat  the  law  will  pre-ume  the 
proprietor  intended  them  as  immovable,  when  they  cannot  be 
taken  away  without  fracture  or  deterioration,  or  leaving  a  gap 
or  vacancy.  A  statue  is  regarded  as  integral  with  the  perma- 
nent base  upon  which  it  rests,  and  which  was  erected  expressly 
for  it,  when  the  removal  of  the  statue  will  offend  the  eye  by 
presenting  before  it  a  distasteful  gap  (^^  vide  choquant")^  a 
foundation  and  base  no  longer  appropriate  or  useful.  lb.,  § 
139.  Things  immovable  by  destination  are  said  to  be  those 
objects  movable  in  their  nature,  which,  without  being  actually 
held  to  the  ground,  are  destined  to  remain  there  perpetually 
attached  for  use,  improvement,  or  ornament.  2  Ledru  Rollin, 
Re[)ertoire  Generale,  514,  §  30. 

I  think  the  French  law,  as  applicable  to  statuary,  is  in  accord- 
ance with  reason  and  justice.  It  effectuates  the  intention  of  the 
proprietor.     No  evidence  could  be  received  more  satisfactory  of 


FIXTURES CONSTRUCTIVE  ANNEXATION.  7 

the  intent  of  the  proprietor  to  make  a  statue  a  part  of  his  realty 
than  the  fact  of  his  having  prepared  a  niche  or  erected  a  perma- 
nent base  of  masonry  expressly  to  receive  it ;  and  to  remove  a 
statue  from  its  base,  under  such  circumstances,  woidd  produce 
as  great  an  injury  and  do  as  much  violence  to  the  freeiiold,  by 
leaving  an  unseemly  and  uncovered  base,  as  it  would  have  done 
if  torn  rudely  from  a  fastening  by  which  it  had  been  connected 
with  the  land.  The  mound  and  base  in  this  case,  though  de- 
signed in  connection  with  the  statue  as  an  ornament  to  the 
grounds,  would,  when  deprived  of  the  statue,  become  a  most 
objectionable  deformity. 

There  are  circumstances  in  this  case,  not  necessary  under  the 
French  law,  to  indicate  the  intention  to  make  the  statue  a  per- 
manent erection,  but  greatly  strengthening  the  presumption  of 
such  intent.  The  base  was  made  of  red  sandstone,  the  same 
material  as  the  statue,  giving  to  both  the  statue  and  base  the 
appearance  of  being  but  a  single  block,  and  both  were  also  of 
the  same  material  as  the  house.  The  statue  was  thus  peculiarly 
fitted  as  an  ornament  for  the  grounds  in  front  of  that  particular 
house.  It  was  also  of  colossal  size,  and  was  not  adapted  to  any 
other  destination  thun  a  permanent  ornament  to  the  realty.  The 
design  and  location  of  the  statue  were  in  every  respect  ajjpro- 
priate,  in  good  taste,  and  in  harmony  with  the  suirounding 
objects  and  circumstances. 

I  lay  entirely  out  of  view  in  this  case  the  fact  that  Thorn  tes- 
titied  that  he  intended  to  sell  the  statue  when  an  opportunity 
should  offer.  His  secret  intention  in  that  respect  can  have  no 
legitimate  bearing  on  the  question.  He  clearly  intended  to  make 
use  of  the  statue  to  ornament  his  grounds,  when  he  erected  for 
it  a  permanent  mound  and  base  ;  and  a  purchaser  had  a  right  so 
to  infer  and  to  be  governed  by  the  manifest  and  unmistakable 
evidences  of  intention.  It  was  decided  by  tlie  court  of  Cassa- 
tion in  France,  in  Hornelle  v.  Enregistr,  2  Ledru  Rollin,  Journal 
du  Palais,  Repertoire,  etc.,  214,  that  the  destination  which  gives 
to  movable  objects  an  immovable  character  results  from  facts 
and  circumstances  determined  by  the  law  itself,  and  could 
neither  be  established  nor  taken  away  by  the  simple  declarations 
of  the  proprietor,  whether  oral  or  written.  There  is  as  much 
reason  in  this  rule  as  in  that  of  the  common  law,  which  deems 
every  person  to  have  intended  the  natural  consequences  of  his 
own  acts. 

There  is  no  good  reason  for  calling  the  statue  personal  be- 
cause it  was  erected  for  ornament  only,  if  it  was  clearly  designed 
to  be  permanent.  If  Thom  had  erected  a  bower  or  summer- 
house  of  wicker-work,  and  had  placed  it  on  a  permanent  founda- 


8  WHAT    IS    REAL    PROPERTy. 

tion  in  an  appropriate  place  in  front  of  his  house,  no  one  would 
doubt  it  belonged  to  the  realty;  and  1  think  this  statue  as 
clearly  belongs  to  the  realty  as  a  statue  would,  placed  on  the 
house,  or  as  one  of  two  statues,  placed  on  the  gate-posts  at  the 
entrance  to  the  grounds. 

An  ornamental  monument  in  a  cemetery  is  none  the  less  real 
property  because  it  is  attached  by  its  own  weight  alone  to  the 
foundation  designed  to  give  it  ])erpetual  support.  (See  to  that 
effect,  Oakland  Cemetery  Co.  v.  Bancroft,  161  Pa.  St.  197.) 

It  is  said  the  statues  and  sphinxes  of  colossal  size  which  adorn 
the  avenue  leading  to  the  Temple  of  Karnak,  at  Thebes,  are 
secured  on  their  solid  foundations  only  in  their  own  weight. 
Yet  that  has  been  found  sutficient  to  preserve  many  of  them  un- 
disturbed for  4,000  years.  Taylor's  Africa,  113  et  seq.  And  if 
a  traveler  should  purchase  from  Mehemet  Ali  the  land  on  which 
these  interesting  ruins  rest,  it  would  seem  quite  absurd  to  hold 
that  the  deed  did  not  cover  the  statues  still  standing,  and  to 
claim  that  they  were  the  still  unadministered  personal  assets  of 
the  Ptolemies,  after  an  annexation  of  such  long  duration.  No 
legal  distinction  can  be  made  between  the  sphinxes  of  Thebes 
and  the  statue  of  Thom.  Both  were  erected  for  ornament,  and 
the  latter  was  as  colossal  in  size  and  as  tirmly  annexed  to  the 
land  as  the  former,  and  by  the  same  means. 

I  apprehend  the  question  whether  the  pyramids  of  Egypt,  or 
Cleopatra's  Needle  are  real  or  personal  property  does  not  de- 
pend on  the  result  of  an  inquiry  by  the  antiquarian  whether  they 
were  originally  made  to  adhere  to  their  foundations  with  wafers, 
or  sealing  wax,  or  a  handful  of  cement.  It  seems  to  me  puerile 
to  make  the  title  depend  upon  the  use  of  such  or  of  any  other 
adhesive  substances,  when  the  great  weight  of  the  erection  is  a 
much  stronger  guarantee  of  permanence. 

The  sun-dial  stands  on  a  somewhat  different  footing.  It  was 
made  for  use  as  well  as  for  ornament,  and  could  not  be  useful 
except  when  firmly  placed  in  the  oi)en  air  and  in  the  light  of 
the  sun.  Though  it  does  not  appear  that  the  stone  on  which 
it  was  placed  was  made  expressly  for  it,  it  was  appropriately  lo- 
cated on  a  solid  and  durable  foundation.  There  is  good  reason 
to  believe  it  was  designed  to  be  a  permanent  fixture,  because 
the  material  of  which  it  was  made  was  the  same  as  that  of  the 
house  and  the  statue,  and  because  it  was  in  every  respect 
adapted  to  the  place. 

My  conclusion  is,  that  the  facts  in  the  case  called  on  the  judge 
of  the  circuit  to  decide,  as  a  matter  of  law,  that  the  property  was 
real,  and  to  nonsuit  the  plaintiff;  and  if  I  am  right  in  this  con- 
clusion, the  judgment  of  the  Supreme  Court  should  be  reversed. 


SEPARATE   ESTATE    IN    COAL    MINES.  9 

Estate    in    Goal   Mines    Separate   from    Estate    in    Surface. 

Plummer  v.  Hillside  Coal  &  Irou  Co.,  160  Pa.  St.  483;  28  A.  853. 

Appeal  from  court  of  common  i)leas,  Lackawanna  County; 
Fred.  W.  Gunster,  Judge. 

Trespass  q.  c.  by  Emma  A.  Plummer  against  the  Hillside 
Coal  &  Iron  Company  and  the  Lackawanna  Coal  Company, 
Limited.  Judgment  for  defendants.  Plaintiff  appeals.  Af- 
firmed. 

Williams,  J.  The  learned  counsel  for  the  appellant  states 
the  point  in  controversy  very  fairly  and  clearly  in  the  opening 
sentence  of  his  printed  argument.  He  says,  "  The  contention 
in  this  case  is  confined  to  the  effect  and  subsequent  history  of 
the  Calendar  lease  dated  the  1st  of  October,  3828."  His  po- 
sition is  that  the  lease  granted  only  an  incorporeal  right  to  the 
lessee,  to  be  exercised  upon  the  premises  covered  by  the  lease. 
The  appellees,  on  the  other  hand,  contend  that  it  granted  the 
coal  in  place,  under  the  land,  absolutely.  The  words  of  the  in- 
strument upon  which  this  question  depends  may  be  put  together 
thus:  '*  Samuel  Calendar  *  *  *  (j^tti  lease  and  to  farm  let 
to  Thomas  Merideth  *  *  *  all  the  land  that  ho  now  holds, 
*  *  *  and  the  lease  is  to  continue  for  the  term  of  one  hun- 
dred years  from  this  day.  Possession  of  the  leased  premises 
shall  extend  only  to  their  use  as  a  coal  field.  The  les=ee  shall 
have  full  power  and  possession  to  search  for  coal  anywhere  on 
the  leased  premises,  in  any  manner  he  may  think  proper,  to 
raise  the  coal,  when  found,  from  the  beds;  to  enter  and  carry 
away  coal ;  and  to  sell  the  same  for  his  own  benefit  and  profit. 
He  may  occupy  whatever  land  may  be  useful  or  necessary  as 
coal  yards,  *  *  *  for  roads  for  transporting  the  coal ;  and 
in  case  it  may  prove  necessary  for  securing  the  full  enjoyment 
of  the  premises  aforesaid  as  a  coal  field,  as  aforesaid,  then  the 
said  Samuel  covenants  and  agrees  to  execute  such  further 
writings  as  counsel  learned  in  the  law  may  deem  pro{)er."  The 
purchase  money  or  price  of  the  coal  is  fixed  at  $200.  If  the 
coal  proved  abundant,  and  of  a  given  thickness,  then  another 
$100  was  to  be  paid.  In  addition  to  this  the  sum  of  $L  per 
annum  was  to  be  paid,  as  rent.  The  lessor  reserved  out  of  this 
grant  the  right,  for  himself  and  his  heirs,  to  take  coal  for  their 
own  use,  so  long  as  they  should  reside  on  the  land.  This  in- 
strument contemplated  a  sale  of  the  coal  under  the  leased  prem- 
ises at  a  fixed  price,  to  be  increased  $100  if  the  quantity  of  coal 
reached  the  proportions  described  in  it.  The  right  of  removal 
was  to  be  exercised  within  100  years.     The  fact  that  the  instru- 


10  WHAT    IS    HEAL    PROPERTY. 

ment  is  in  the  form  of  a  lease  is  not  material,  when  the  charter 
of  the  transaction  is  apparent.     Kinjjslev  v.  Iron  Co.,  144  Pa. 
St.  613;  23   Atl.  250;  Montooth   v.   Gaiuble,    123   Pa.  St.  240; 
16  Atl.  594.     A  written  contract,  thou<;h  not  under  seal,  grant- 
ing the  privilege  of  digging  all  the  coal  or  ore  on  the  vendor's 
land,  is  equivalent  to  a  conveyance  of  the  title  to  the  coal  or  ore 
in  fee.     Fairchild  v.  Furnace  Co.,  128  Pa.  St.  485;  18  Atl.  443, 
444.     Such  a  conveyance  operates  to  sever  the  surface  from  the 
underlying  stratum  of  coal;  and  after  such  severance  the  contin- 
ual occupancy  of  the  surface  by  tiie  vendor  is  not  hostile  to  the 
title  of  the  owner  of  the  underlying  estate,  and  will   not  give 
title  under  the  statute  of  limitations.     To  affect  the  title  of  the 
owner  of  the  coal,  there  must  be  an  entry  upon  his  estate,  and 
an  adverse  possession  of  it.     Armstrong  v.  Caldwell,  53  Pa.  St. 
294.     But  the  contention  that  a  right  to  mine  coal  in  the  land 
of  another  is  an  incorporeal  one  cannot  be  successfully  main- 
tained.    The  grant  of  such  a  right   is   a  grant  of  an  interest  in 
land.     Hope's  Appeal  (Pa.  Sup.),  3  Atl.  23.     When  the  grant 
is,  in  terms  or  in   effect,  a  grant  of  all  the  coal  on  the  lessor's 
land,  this  amounts  to  a  severance  of  the  coal  from  the  surface, 
and  vetits  a  title  to  the  underlying  stratum  in  the  grantee.      San- 
derson V.  City  of  Scranton,  105  Pa.  St.  469.     This  underlying 
estate  may  be  conveyed   under  the  same  general  rules,  as  to 
notice  as  to  recording,  and  as  to  actual  possession,  as  the  sur- 
face.    After  such  a  severance   the  possession  of  the  holder  of 
each  estate  is  referable  to  his  title.     The  owner  of  the  surface 
can  no  more  extend  the  effect   of  his  possession  of  his  own 
estate  downward  than  the  owner  of  the  coal  stratum  can  extend 
his  possession  upward,  so  as  to  give  him  title  to  the  surface, 
under  the  statute  of  limitations.     The  owner  of  the  surface  can 
be  affected  only  by  the  invasion  of  the  surface.     The  owner  of 
the  underlying  stratum  is  not  bound  to  take  notice  of  the  inva- 
sion of  the  estates  that  do  not  belong  to  him,  but  when  his  own 
estate  is  invaded  he  is  bound  to  take  notice.     The  conclusion 
thus  reached  disposes  of  the  title  by  possession  set  up  by  the 
plaintiff,  and  of  her  riijht  to  recover  in  this  case. 

The  appellant  cites  Oil  Co.  v.  Fretts,  152  Pa.  St.  451 ;  25  Atl. 
732 ;  Menish  v.  Stone,  152  Pa.  St.  457 ;  note  25  Atl.  732,  —  and 
other  cases  in  which  oil  leases  were  considei  ed,  and  the  rights 
of  the  lessors  and  lessees  defined.  A  lease  granting  to  the 
lessee  the  right  to  explore  for  oil,  and,  in  case  oil  is  found  in  pay- 
ing quantities  on  the  leased  premises  to  drill  wells  and  raise  the 
oil,  paying  an  agreed  royalty  therefor,  has  been  held  to  convey 
no  interest  in  the  land,  beyond  the  right  to  enter  and  explore, 
unless  the  search  for  oil  proves  successful.     If  it  proves  unsuc- 


SEPARATE  ESTATE  IN  COAL  MINES.  11 

cessful,  and  the  lessee  abandons  its  future  prosecution,  his  rights 
under  the  lease  are  gone.  ISo  it  might  bo  with  a  similar  lease  of 
lands  supposed  to  contain  coal.  If  the  lessee  entered,  expK)red 
the  le;iscd  premises,  and,  finding  nothing,  gave  up  the  search, 
he  would  no  d()ut)t  be  held  to*  the  same  rules,  upon  the  same  pro- 
visions in  the  lease,  as  were  applied  in  the  case  cited.  The  dif- 
ference in  the  nature  of  the  two  minerals,  and  the  manner  of 
their  production,  have,  however,  resulted  in  considerable  differ- 
ences in  the  forms  of  the  contracts  of  leases  made  use  of. 
When  oil  is  discovered  in  any  given  region,  the  development  of 
the  region  becomes  immediately  necessary.  The  fugitive  char- 
acter of  oil  and  gas,  and  the  fact  that  a  single  well  may  drain  a 
considerable  territory,  and  bring  to  the  surface  oil  that  when  in 
place,  in  the  sand  rock,  was  under  the  lands  of  adjoining  own- 
ers, makes  it  important  for  each  land  owner  to  test  his  own 
land  as  speedily  as  possible.  Such  leases  generally  require, 
for  this  reason,  that  operations  should  begin  within  a  fixed  num- 
ber of  days  or  months,  and  be  prosecuted  to  a  successful  end, 
or  to  al)andonment.  Coal,  on  the  other  hand,  is  fixed  in  loca- 
tion. The  owner  may  mine  when  he  pleases,  rt'gardloss  of 
operations  around  him.  Its  amount  and  probable  vaUie  can  be 
calcuhited  with  a  fair  degree  of  business  certainty.  There  is  no 
necessity  for  haste  nor  movingpaW  jtjass^t  with  adjoining  owners. 
The  consequence  is  that  coal  leases  are  for  a  certain  fixed  term, 
or  for  all  the  coal  upon  the  land  leased,  as  the  case  may  be. 
The  rule  of  Oil  Co.  v.  Fretts,  supra,  is  not  capable  of  ai)plica- 
tion  to  the  lease  made  by  Calendar  to  Merideth  in  1828,  for 
several  reasons:  First,  the  Calendar  lease  is,  in  effect,  a  sale 
of  all  the  coal  in  the  leased  premises,  and  subsequently  a  sever- 
ance of  the  surface  theretVom.  Second,  it  is  for  100  years. 
All  idea  of  haste  in  development  or  operating  is  exeluded  by 
the  terms  of  the  instrument,  and  the  time  for  commencing  the 
work  of  mining  is  left  to  the  discretion  of  the  lessee.  Third, 
the  consideration  of  the  grant  was,  not  tlie  development  of  the 
mineral  value  of  the  land,  but  the  price  fixed  by  the  agreement, 
and  actually  paid  to  the  lessor  in  money.  Upon  a  careful  exam- 
ination of  the  several  assignments  of  error,  we  are  all  of  opinion 
that  the  judgment  must  be  affirmed.  Judgment  will  be  entered 
accordingly. 


12  ESTATE    IN    FEE    SIMPLE. 

CHAPTER     III. 

ESTATES  IN  FEE  SIMPLE. 

Truesdell  v.  Lehmau,  47  N.  J.  Eq.  218;  20  A.  391. 

Ewins  V.  Shanahan,  113  Mo.  188;  20  S.  W.  1065. 

Sicldons  v.  Cockrell,  131  III.  653;  23  N.  E.  668. 

Words  of  Limitations  in  a  Deed — Heirs  Necessary,  in 
Absence  of  Statute  to  the  Contrary. 

Truesdell  v.  Lehman,  47  N.  J.  Eq.  218;  20  A.  391. 

Green,  V.  C.  Warren  Truesdell,  April  11,  1878,  obtained  a 
judgment  in  the  Supreme  Court  of  this  State  against  Michael  R,. 
Kenney  and  others,  for  $296.41.  Execution  was  issued,  and 
returned  unsatisfied,  and  the  whole  amount  of  the  judgment 
remains  unpaid.  Bridget  E.  Cheshire,  by  a  deed  of  bargain  and 
sale  dated  January  12,  1875,  conveyed  to  the  said  Michael  R. 
Kenney  certain  property  in  the  city  of  Newark,  ahutiing  on 
French  and  Peat  streets,  consisting  of  four  lots,  the  whole  tract 
being  100  feet  square.  The  property  seems  to  be  still  unim- 
proved and  unoccupied.  The  deed  referred  to  contains  no  words 
of  inheritance,  being  drawn  to  the  grantee  and  his  assigns,  not 
to  his  heirs,  and  therefore  conveyed  only  a  life-estate  to 
Michael  R.  Kenny.  Kearney  v.  Macomb,  16  N.  J.  Eq.  189; 
Welier  v.  Rolason,  17  N.  J.  Eq.  15.  Michael  R.  Kenny  died 
intestate  10  or  12  years  ago,  leaving  Horace  J.  Kenny,  Cecelia 
R.,  wife  of  John  A.  ITlintoff,  James  Kenny,  Lignori  Kenny, 
and  Sylvester  J.  Kenny,  his  children  and  heirs  at  law.  Cecelia 
R.  Flintoff  died  before  the  filing  of  his  bill,  leaving  George  S. 
Flintoff  and  Cecelia  K.  Flintotf,  the  infant  defendants,  her 
heirs  at  law.  Sylvester  J.  Kenny,  Lignori  Kenny,  and  Horace 
J.  Kenny,  after  their  father's  death,  executed  and  delivered  to 
Frank  M.  McDermitt  a  deed  of  bargain  and  sale  dated  October 
24,  1889,  for  the  equal  undivided  three-fourths  part  of  the  said 
tract.  Bridget  E.  Cheshire,  the  original  grantor,  by  deed  of 
bargain  and  sale  dated  November  23,  1889,  conveyed  the  four 
lots  to  Sylvester  J.  Kenny  in  fee.  He,  by  like  deed  of  same 
dale,  conveyed  to  Frank  M.  McDermitt,  who,  by  like  deed  dated 
November  30,  1889,  conveyed  the  same  to  the  defendant  Charles 
A.  Lehman.  The  bill  alleges  that,  while  the  original  deed  from 
Bridget  E.  Cheshire  to  Michael  R.  Kenny  in  fact  only  conveyed 
a  life-estate,  the  parties  to  it  intended  that  it  should  convey  an 
estate  in  fee  simple,  but  by  a  clerical  mistake,  the  word  "  heirs  " 
was  omitted  from  the  granting  and  habendum  clauses,  of  which 
omission    both    the    grantor   and   grantee    were    ignorant,    and 


WORDS    OF   LIMITATION    IN  A  DEED.  13 

always  supposed  the  deod  conveyed  an  absolute  estate  of  inherit- 
ance. It  prays  that  the  deed  he  reformed  by  inserting  the  word 
*'  heirs,"  so  that  an  estate  in  fee-siniple  may  be  decreed  to  have 
passed  thereby,  in  accordance  with  the  intention  of  the  parties  ; 
and  that,  after  such  reformation,  the  said  land  may  be  charged 
with    liability  for  the  payment  of  complainant's  said  judgment. 

There  can  be  no  doubt  that  Bridget  E.  Cheshire  sold  and 
Michael  R.  Kenny  bought  the  fee  of  the  premises  ;  and  that  they 
intended  and  supposed  the  original  deed  conveyed  such  an  estate. 
That  he  so  believed  is  shown  by  the  fact  that,  three  days  after 
its  date,  he  conveyed  a  portion  of  it  in  fee  to  the  city  of  New- 
ark, for  the  purpose  of  a  street.  Bridget  E.  Cheshire  has  been 
examined  as  a  witness,  and  testitied  that,  when  she  sold  the 
property  to  Michael  R.  Kenny,  and  made  a  deed  to  him,  she  sold 
all  her  interest  in  the  land  to  him  —she  "  sold  it  out  and  out ;  " 
that  she  signed  the  second  deed  to  Sylvester  J.  Kenny  because 
she  was  told,  by  those  who  brought  it  to  her,  that  a  word  was 
missing  in  the  first  deed,  and  that  she  never  before  knew  there 
was  a  mistake  in  the  first  deed;  that  she  was  paid  nothing  for 
the  last  conveyance.  It  is  clear  that  it  was  the  intention  of  the 
parties  to  convey  the  fee,  and  that  the  omission  of  the  word 
"  inheritance"  was  not  by  the  act  or  procurement,  or  with  the 
knowledge  of  either  of  them,  and  that  the  deed  did  not  accom- 
plish the  intentions  of  the  parlies  through  the  mistake  of  the 
draughtsman.  The  satisfactory  proof  of  these  facts  would 
warrant  a  decree  that  the  deed  should  be  reformed,  if  the  proper 
parties  were  in  court,  and  no  interests  have  intervened  which  are 
entitled  to  prior  protection.  Kearney  v.  Macomb,  16  N.  J  Eq. 
189;  Weller  v.  Rolason,  17  N.  J.  Eq.  13  ;  Wanner  v.  Sisson,  29 
N.  J.  Eq.  141.  Where  it  clearly  appears  that  a  deed,  drawn 
professedly  to  carry  out  the  agreement  of  the  parties  previously 
entered  into,  is  executed  under  the  misapprehension  that  it  re- 
ally embodies  the  agreement,  whereas,  by  mistake  of  the 
draughtsman,  either  as  to  fact  or  law,  it  fails  to  fulfill  that  pur- 
pose, equity  will  correct  the  mistake  by  reforming  the  instru- 
ment in  accordance  with  the  contract.  Winterniute's  Ex'rs  v. 
Snyder's  Ex'rs,  3  N.,j.  Eq.  489-500;  Hendrixson  v.  Irvins,  1  N. 
J.  Eq.  562-568;  Hopper  v.  Lutkins,  4  N.J.  Eq.  149-154  ;  Green 
V.  Railroad  Co.,  12  N.  J.  Eq.  165;  Hunt  v.  Rousmaniere,  1  Pet. 
13;  Higinbotham  v.  Burnet,  5. Johns.  Ch.  183;  Fisher  v.  Fields, 
10  Johns.  495;  Story  Eq.  Jur.,   §  115. 

Is  the  complainant  in  a  position  to  ask  this  court  to  make  such 
a  decree?  He  is  a  judgment  creditor  of  Michael  R.  Kenny. 
During  Kenny's  life,  and  the  continuance  of  the  life-estate,  that 
interest  was  subject  to   levy   and  sale  under  execution   on  the 

1 


14  ESTATES    IN    FEE    SIMPLE. 

jutlirment,  but  the  interest  which  Kenny  had  in  the  fee  was  an 
equitable  one  only.  Where  words  of  inheritance  are  omitted  by 
mistake  from  a  conveyance,  contrary  to  the  intentions  of  the 
parties,  a  trust  in  fee  may  be  considered  as  created,  which  a 
court  of  equity  will  execute,  according  to  the  conscience  and 
intention  of  the  parties.  Higinbotham  v.  Burnet,  5  Johns.  Ch. 
184-188.  Being  an  equitable  interest  only,  the  judgment  and 
execution  did  not  constitute  a  lien  thereon.  At  Kenny's  death, 
all  that  passed  to  his  heirs  was  this  equitable  interest,  not 
directly  subject  to  the  judgment  of  the  complainant.  Disbor- 
ough  V.  Outcalt,  1  N.  J.  Eq.  298,  304;  Woodruif  v.  Johnson,  8 
N.  J.  Eq.  729;  Halsted  v.  Davison,  10  N.  J.  Eq.  295.  The 
judgment  was,  however,  not  a  lien,  and  complainant  was  unable 
to  enforce  it  against  this  property  after  Kenny's  death,  because 
the  fee,  by  the  mistake  referred  to,  remained  vested  in  Bridget 
Cheshire.  Equity  will  intervene  in  behalf  of  a  judgment  cred- 
itor in  pursuance  of  the  statute,  and  as  auxiliary  to  law,  to  re- 
move a  legal  impediment  which  may  be  subject  to  some  special 
branch  of  equity  jurisdiction.  Mr.  Justice  Depue,  in  Harden- 
burgh  V.  Blair,  30  N.  J.  Eq.  658,  says:  "  The  powers  of  the 
court  were  simply  in  aid  of  the  judgment  creditor  when  a  trust 
had  been  interposed  which  obstructed  the  operation  of  the  pro- 
cess of  a  court  of  law,  and  extended  only  to  such  property  as, 
save  for  the  interposition  of  the  legal  obstruction,  might  have 
been  reached  by  such  process."  Meate  v.  Duke  of  Marlbor- 
ough, 3  Mylne  &  C.  416.  The  chancellor,  in  Dinsborough  v. 
Outcalt,  1  N.  J.  Eq.  298,  says;  "Courts  of  equity,  in  some 
cases,  aid  execution  creditors,  and  obtain  satisfaction  of  their 
demands.  But,  to  warrant  its  interference,  there  must  be  some 
equitable  ground  presented.  The  case  must  be  infected  with 
fraud,  or  it  must  involve  some  trust  or  other  matter  of  peculiar 
equity  jurisdiction.  The  court  will  then  act  on  its  own  estab- 
lished principles,  and  afford  such  relief  as  the  situation  of  the 
parties  requires  and  the  nature  of  the  case  will  admit." 

If  the  condition  of  the  title  to  the  premises  in  question  had 
been  created  by  Michael  R.  Kenny  intentionally,  and  for  the 
purpose  of  defrauding  his  creditors,  equity  would,  in  the  exer- 
cise of  its  jurisdiction  to  prevent  fraud,  have  lent  its  aid  to  re- 
move the  impediment.  In  such  a  case,  the  defendant,  by  his 
own  act,  so  places  the  title  that  it  cannot  be  reached  by  his  cred- 
itors. This  is,  of  course,  a  fraud  as  to  them.  Having  obtained 
a  judgment,  the  creditor  is  prevented  from  reaching  the  prop- 
erty by  execution  by  the  impediment  thus  interposed  by  the  fraud 
of  his  debtor,  and  the  prevention  of  the  successful  perpetration 
of  fraud  being  one  of  the  grounds  of  equity  jurisdiction,  the 


WORDS    OF    LIMITATIONS    IN    A    DEED.  15 

court  will  exercise  it  to  remove  the  obstacle,  and  aid  the  judg- 
ment creditor  in  the  collection  of  his  claim.  The  element  of 
fraud  was  wanting  in  the  case  of  Disb(»rough  v.  Outcalt,  siipra^ 
and  for  that  reason  the  court  withheld  its  arm.  In  Woodruff  v. 
Johnson,  supra ^  the  court  proceeded  against  the  property  which 
represented  the  defendant's  expenditure,  on  the  ground  that  it 
would  be  a  fraud  to  permit  him  to  so  secure  his  own  individual 
property  from  his  creditors.  But  the  correction  of  a  mistake, 
where  it  has  occurred  under  certain  conditions,  is  also  a  branch 
of  equity  jurisdiction.  The  mistake  in  the  case  in  hand  is  one 
which  falls  within  the  rules  which  invoke  the  exercise  of  that 
power.  An  impediment  to  the  collection  of  the  debt  of  a  judg- 
ment creditor  by  execution  is  created,  not  by  the  fraud,  but  by 
such  a  mistake  of  the  parties.  While  I  find  no  case  similar,  it  is 
clear,  on  principle,  that  the  power  of  the  court  should  be  exer- 
cised to  remove  an  obstacle  to  the  operation  of  the  execution 
created  by  such  mistake,  as  well  as  the  case  of  fraud,  and  that 
the  complainant  would  be  entitled  to  the  aid  of  the  court,  if  the 
rights  of  others  which  have  been  acquired  do  not  deprive  him  of 
its  exercise. 

The  legal  title  being  in  the  defendant  Lehman,  the  question 
presents  itself,  is  the  equity  of  the  complainant  superior  to  the 
rights  which  are  vested  in  Lehman,  and  this  depends  on  whether 
Lehman  was  a  bona  fide  purchaser  for  value  of  the  property. 
The  evidence  shows  that  the  value  of  the  property  was  about 
$1,000,  and  that  it  was  subject  to  the  lien  of  taxes  under  the 
Martm  act  to  the  amount  of  $350.  The  interest  of  the  defendant 
Lehman  was  acquired  under  the  following  circumstances  :  Horace 
J.  Kenny,  a  son  of  Michael  R.  Kenny,  boarded  with  the  defend- 
ant Lehman,  and  became  indebted  to  him  in  the  sum  of  $205. 
Lehman  refusing  to  trust  him  further,  Horace  procured  from 
his  sister,  Mrs.  Flintoff,  her  note  for  $225,  which  he  paid  to 
Lehman  in  discharge  of  his  debt,  receiving  the  balance  in  cash. 
Horace  J.  Kenny  had  been  sued  by  a  Mr.  Colie,  in  settlement  of 
which  the  defendant  McDerniitt  gave  his  own  note  for  $100. 
McDerraitt  had  also  loaned  money  to  Horace  at  various  times, 
and  took  the  conveyance  from  the  Kenny  heirs  to  secure  this 
indebtedness.  Lehman  claims  to  have  advanced  Horace  $25  on 
the  strength  of  McDermitt  having  this  deed.  McDermitt  then 
had  a  search  of  the  title  made,  and  discovered  that  the  original 
deed  only  conveyed  a  life-estate  to  Michael,  and  told  Lehman 
not  to  give  Horace  any  more  money,  because  there  was  some- 
thing the  matter  with  the  title.  On  McDermitt  informing  Hor- 
ace of  the  defect  in  the  title,  the  second  deed  was  procured 
from  Mrs.   Cheshire  to  Sylvester  J.  Kenny.     McDermitt  says 


16  ESTATES  IN  FEE  SIMPLE. 

he  knew  absolutely  nothing  as  to  how  Sylvester  obtained 
that  deed,  or  the  circumstances  under  which  he  obtained  it. 
After  Sylvester  conveyed  to  Mr.  McDerrnitt,  the  latter  told 
Horace,  if  he  would  agree  to  discharge  his  indebtedness  to  Leh- 
man, as  the  title  was  now  clear,  he  thought  he  could  induce 
Lehman  to  buy  the  property  so  that  Horace  could  pay  his  debts 
and  get  some  cash.  McDermitt  says  he  acted  for  Horace  in  the 
matter;  that  he  told  Lehman  he  could  give  him  a  good,  clear 
title  ;  that  Lehman  had  no  notice  of  any  judgment ;  no  notice  of 
any  lien;  that  he  did  not  consider  it  necessary  to  give  him  any 
notice  of  any  such  judgment,  because  he  did  not  regard  it  as  a 
lien  against  the  property.  McDermitt  negotiated  a  sale  of  the 
lots  to  Lehman,  and  conveyed  them  to  him  by  the  deed  dated 
November  30,  1889.  Lehman,  in  pursuance  of  his  agreement, 
and  as  consideration  for  the  conveyance,  gave  up  the  $225, 
Flintoff's  note,  paid  Horace  $100  on  receiving  the  deed,  and,  in 
a  day  or  so,  settled  the  balance  by  discharging  his  indebtedness, 
and  paying  hira  some  $200  in  cash.  He  assumed  the  payment 
of  taxes  amounting  to  $350,  and  the  Colie  note  of  $100.  So 
that  he  gave  up  a  note  of  $225,  paid  Horace  $300,  and  canceled 
Horace's  indebtedness,  including  a  loan  of  $25.  He  has  since 
given  Colie  his  own  note  for  $100,  and  has  paid  the  taxes;  the 
whole  being  the  value  of  the  property  as  sworn  to  by  McDermitt, 
and  not  questioned.  ♦ 

The  complainant  claims  that  Lehman  was  not  a  bona  fide  pur- 
chaser, and  should  be  postponed  to  his  judgment,  because  he  is 
chargeable  with  notice  of  complainant's  claim.  The  evidence  is 
that  Lehman's  deed  was  delivered  prior  to  any  actual  notice  of 
any  claim  on  the  part  of  complainant.  It  is  urged  that  McDer- 
mitt was  Lehman's  counsel,  and  that  the  latter  is  chargeable 
with  such  notice  as  McDermitt  had.  They  both  deny  that  Mc- 
Dermitt was  Lehman's  counsel  in  the  matter,  and  the  evidence 
fails  to  establish  the  relation  of  counsel  and  client  between  them 
as  to  this  transaction.  But,  if  it  were  as  contended,  McDermitt 
only  had  notice  of  what  he  had  learned  from  the  record,  and 
Lehman  was  bound  to  have  advised  himself  of  the  condition  of 
the  title  as  shown  by  the  record.  Mr.  Justice  Dixon,  in  Roll  v. 
Lea,  50  N.  J.  Law,  268;  12  Atl.  Rep.  905,  says:  "  A  party  is 
undoubtedly  chargeable  with  notice  of  every  matter  affecting  the 
estate  which  appears  on  the  face  of  any  deed  forming  an  essen- 
tial link  in  the  chain  of  instruments  through  which  he  derived 
his  title,  and  also  with  notice  of  whatever  matters  he  would  have 
learned  by  any  inquiry  which  the  recitals  of  those  instruments 
made  it  his  duty  to  pursue."  And  again:  *' Parties  dealing 
with  real  estate  may  always  lawfully  assume  that  the  title  is  com- 


WORDS    OF   LIMITATIONS    IN    A   DEED.  17 

pletely  disclosed  on  the  records,  unless  there  is  some  circum- 
stances of  which  they  are  bound  to  take  notice,  which  would 
apprise  a  reasonable  man,  not  merely  that  the  records  may  be 
defective,  for  that  is  always  possible,  but  that  they  actually  are 
so  in  the  particular  case  in  hand."  Complainant's  equity  was 
based  on  the  fact  that  the  conveyance  from  Bridget  Cheshire  to 
Michael  R.  Kenny  was  intended  by  the  parties  to  convey  the  fee, 
but  by  mistake  of  the  draughtsman  only  conveyed  a  life-estate. 
What  notice  of  this  condition  could  be  developed  by  an  exami- 
nation of  the  records?  The  record  disclosed  the  complainant's 
judgment,  and  that  Michael  R.  Kenny  had  only  a  life-estate  in 
the  property  ;  but  the  creation  of  a  life-estate  is  certainly  not 
such  a  peculiar  fact  as  to  require  a  prudent  man  to  inquire  into 
its  reason,  or  the  circumstances  connected  with  its  creation. 
Much  is  claimed,  as  a  warning,  from  the  fact  that  on  the  record 
a  blank  occurs  where  the  word  "  heirs  "  would  be  properly  writ- 
ten, but  the  existence  of  such  blank  would,  to  most  minds,  indi- 
cate that  the  word  was  properly  omitted,  rather  than  that  its 
omission  was  the  result  of  carelessness  or  mistake.  It  is  urged 
that  the  deed  from  Michael  R.  Kenny  to  the  city  of  Newark  in 
fee  of  a  strip  of  the  land  was  a  circumstance  showing  that  he 
considered  his  title  complete ;  but,  when  the  conveyances  to 
McDermitt  and  Lehman  were  made,  Michael  R.  Kenny  was  dead, 
and  the  conveyance  to  him,  being  only  for  a  life-estate,  which 
was  of  course  terminated  by  his  death,  what  he  had  done  during 
the  term  of  his  life-estate  could  not  affect  the  title  after  its  ter- 
mination, and  there  was  no  reason  to  search  for  what  he  had 
done  during  its  existence.  So  that  all  the  notice  Lehman  is 
chargeable  with  was  the  conveyance  of  a  life-estate  by  Bridget 
Cheshire  to  Michael  R.  Kenny,  the  entry  of  the  complainant's 
judgment,  the  conveyance  to  Sylvester  J.  Kenny,  and  that  to 
Frank  M.  McDermitt.  This  is  far  short  of  complainant's  case, 
that  the  original  conveyance  was  intended  by  the  parties  as  one 
in  fee  which  had  been  defeated  bv  mistake  of  the  draughtsman. 
But  complainant  is  chargeable  with  notice  of  everything  that 
Lehman  is.  The  record  was  as  much  notice  to  him  as  to  the 
defendant.  He  has  slept  on  his  rights  since  April,  1878.  All 
of  the  events  or  conveyances  which  he  now  claims  should  have 
opened  the  eyes  of  Lehman  to  the  fact  that  his  judgment  should, 
in  equity,  be  enforced  against  this  property,  existed,  and  were 
as  apparent  then  as  now.  Vigilantihus  non  dormieiilibiis equitas 
suhvenit.  These  considerations  lead  to  the  conclusion  that  com- 
plainant has  no  equity  which  is  superior  to  Lehman's  title,  and 
that  the  bill  must  be  dismissed.  The  conveyance  to  Sylvester 
J.  Kenny  may  have  inured  to    the  benefit  of  the  infant  defend- 

2 


ESTATES    IN   FEE   SIMPLE. 


ants,  hut  their  rights  cannot  be  adjudicatetl  in  this  suit,  if  the 
complainant's  case  fails. 


Words  of  Limitation  in   Deed  to  Trustees. 

Ewing  V.  Shanuahau,  113  Mo.  188;  20  S.  W.  1065. 

Black,  J.  This  is  nn  action  of  ejectment  for  a  lot  in  the  city 
of  8t.  Louis.  The  answer  is  a  general  denial,  and  a  plea  of  the 
statute  of  limitations.  Both  parties  claim  under  William  G. 
Ewing.  The  plaintiff  put  in  evidence  a  deed,  the  material  parts 
of  which  are  in  these  words:  "This  indenture  witnesseth  that 
George  W.  Ewing,  Junior,  a  devisee  of  William  G.  Ewing, 
*  *  *  in  consideration  of  six  hundred  dollars  and  other  good 
and  sufficient  consideration,  doth  by  these  presents  give,  grant, 
bargain  and  sell  to  George  W.  Ewing,  father  of  George  W. 
Ewing,  Junior,  the  following  described  real  estate,  [then  follows 
a  description  of  the  lot  in  question,  and  other  lots  and  lands  in 
this  State  and  in  the  States  of  Indiana,  Illinois,  and  Minnesota,] 
to  have  and  to  hold  the  same  to  the  said  George  W.  Ewing,  in 
trust,  for  the  uses  and  purposes  following,  to  wit:  First.  The 
said  George  W.  Ewing,  trustee  as  aforesaid,  shall  sell  and  con- 
vey all  such  part  or  parts  of  the  real  estate  hereby  conveyed  to 
him  as  he  may  deem  most  advantageous  for  the  interests  of  the 
trust  hereby  created,  and  the  proceeds  thereof  to  reinvest  for  the 
same  pur|)0se  for  which  this  trust  is  created,  or  to  expend  the 
same  in  improving  such  of  the  property  hereby  conveyed  as  the 
said  trustee  shall  deem  most  advisable,  and  for  the  purpose  of 
creating  an  income  therefrom.  Second.  That  of  the  income 
and  profits  arising  under  this  trust,  a  reasonable  sum,  such  as 
the  said  trustee  shall  deem  to  be  sufficient,  shall  be  expended  in 
the  maintenance  of  the  said  George  W.  Ewing,  Jr.,  and  the  nec- 
essary expenses  shall  be  expended,  for  the  benefit  of  the  trust, 
when  and  at  such  times  as  the  trustee  shall  think  best.  Third. 
Should  the  said  trustee  die  before  his  said  ward,  that  Jesse 
Holliday,  of  San  Francisco,  Cal.,  or,  upon  his  refusal  to 
act,  such  person  as  the  court  of  common  pleas  of  Allen 
County,  Indiana,  shall  appoint,  shall  take  up  and  continue  this 
trust.  Fourfh.  That  upon  the  death  of  the  said  George  W. 
Ewing,  Jr.,  the  property  hereby  placed  in  trust  shall  descend  to 
the  legal  representatives  of  the  said  George  W.  Ewing,  Jr.  ; 
provided,  however,  that  William  G.  Ewing,  Jr.,  the  adopted  sou 
of  William  G.  Ewing,  deceased,  shall  under  no  circumstances 
whatever  inherit  or  be  entitled  to  any  part  or  parcel  hereof." 
This  deed  bears  date  the  31st  December,  1863;  and  on  the  1st 


WORDS  OF    LIMITATIONS   IN   A  DEED  TO  TRUSTEES.  19 

March,  18(j6,  George  W.  Ewing,  Sr.,  executed  to  George  W. 
Ewing,  Jr.,  a  quit-claim  deed  of  that  date.  This  quit-claini  deed 
refers  to  the  deed  of  trust,  and  then  states  that  it  is  now  desira- 
ble that  the  trust  be  terminated,  and  to  that  end  the  unsold 
property  described  in  the  deed  of  trust  is  conveyed  back  to  the 
donor.  Afterward,  and  on  the  15lh  July,  18(J7,  George  W, 
Ewing,  Jr.,  and  his  wife,  by  their  warranty  deed,  conveyed  this 
lot  to  the  defendant  for  the  consideration  of  $1,800,  that  being 
its  then  full  value.  Defendant  took  possession  under  this  deed, 
and  has  made  im[)rovements  on  the  property  at  a  cost  of  $20,000, 
believing  he  had  a  perfect  title.  George  W.  Ewing,  Jr.,  died 
on  the  2d  December,  1872,  leaving  a  son,  the  plaintiff  in  this 
case,  as  his  only  heir  at  law.  Plaintiff  was  born  on  the  6th  Sep- 
tember, 1866.  This  suit  was  commenced  on  the  13th  March, 
1889.  On  a  trial  without  a  jury  the  circuit  court  gave  judgment 
for  defendant. 

1.  Although  the  deed  from  George  W.  Ewing,  Jr.,  conveying 
the  property  to  his  father,  George  W.  Ewing,  Sr.,  in  trust,  does 
not  use  the  word  "  heirs,"  still  the  deed  vested  in  the  trustee 
the  fee-simple  title  for  the  purposes  specified  ;  for  under  our 
statute  the  word  "  heirs,"  or  other  words  of  inheritance,  are  not 
necessary  to  convey  an  estate  in  fee-simple.  Such  an  estate 
passes  by  the  deed  without  the  use  of  words  of  inheritance,  unless 
the  intent  to  pass  a  less  estate  is  expressly  stated,  or  appears  by 
necessary  implication.  Section  3939,  Rev.  St.  1879;  McCullock' 
V.  Holmes  (Mo.),  19  S.  W.  Rep.  1096  (not  yet  officially 
reported).     Here  no  intent  to  pass  a  less  estate  appears. 

But,  without  regard  to  this  statute,  the  deed  in  question 
would  pass  a  fee-simple  estate  to  the  trustee;  for  though,  in 
general,  in  the  absence  of  such  a  statute,  words  of  inheritance 
are  necessary  to  pass  a  fee,  yet  there  are  exceptions  to  the  rule. 
Thus,  where  lands  are  devised  or  conveyed  to  a  trustee  without 
the  use  of  the  word  "  heirs,"  and  it  is  necessary  that  the  trustee 
should  take  an  estate  of  inheritance  in  order  to  enable  him  to 
carry  out  the  intention  of  the  donor,  he  will  take  an  estate  in 
fee-simple.  Perry  Trusts,  §  315  ;  Fisher  v.  Fields,  10  Johns. 
495;  Cleveland  v.  Hallett,  6  Cush.  403.  Where,  as  in  the  case 
now  in  hand,  the  property  is  conveyed  to  a  trustee  with  power 
to  sell  and  convey  the  fee  simple,  an  estate  in  fee  simple  is 
invested  in  the  trustee.  North  v.  Philbrook,  34  Me.  533;  Neil- 
son  V.  Lagow,  12  How.  99;  Gould  v.  Lamb,  11  Mete.  (Mass.) 
84.  If,  however,  a  less  estate  than  a  fee  is  clearly  given,  courts 
cannot  enlarge  it  by  construction;  but  here  no  intention  is 
manifested  to  give  a  less  estate. 

2.  A  further  preliminary  question    arises,  and    that    is  what 


20  ESTATES  IN  PEE  SIMPLE. 

meaning  is  to  be  given  to  tlie  term  "  legal  representatives"  in 
the  fourth  of  the  paragraphs  specifying  the  trusts,  whereby  it  is 
provided  that  upon  the  death  of  the  said  George  W.  Ewing,  Jr., 
the  donor,  the  property  placed  in  the  hands  of  the  trustees  shall 
descend  to  the  legal  representatives  of  him,  the  said  donor.  The 
term  "  legal  representatives  "  is  often  used  in  statutes  and  instru- 
ments of  writing  in  a  broad  sense,  so  as  to  include  all  persons 
who  stand  in  the  place  of,  and  represent  the  interest  of,  another, 
either  by  his  act  or  by  operation  of  law,  and  in  such  cases  it 
includes  heirs  and  assigns.  Wear  v.  Bryant,  5  Mo.  147  ;  Insur- 
ance Co.  V.  Armstrong,  117  U.  S.  597;  6  Sup.  Ct.  Rep.  877  ; 
Beall  V.  Elder,  34  La.  Ann.  1098;  Johnson  v.  Ames,  11  Pick. 
173.  But  the  usual  and  ordinary  meaning  is  "  executors  and 
administrators."  Cox  v.  Curwon,  118  Mass.  198;  Lodge  v. 
Weld,  139  Mass.  499;  2  N.  E.  Rep.  95;  Bowman  v.  Long,  89 
111.  20;  Hasley  v.  Paterson,  37  N.  J.  448.  The  term  may, 
and  often  does,  mean  heirs  (Bowman  v.  Long,  supra;  Farnam 
V.  Farnam,  53  Conn.  290  ;  2  Atl.  Rep.  325,  and  5  Atl.  Rep.  682), 
or  next  of  kin  (Jennings  v.  Gallimore,  3  Ves.  Jr.  146).  Suffi- 
cient has  been  said  to  show  that  we  must  look  to  the  context  to 
ascertain  the  meaning  of  the  term,  as  used  in  this  deed.  Doing 
this,  we  find  the  donor  of  the  trust  reserved  no  power  to  dispose 
of  the  property,  or  any  interest  therein.  He  has  not  even  re- 
served the  power  of  revoking  the  trust.  It  cannot,  therefore, 
be  said,  that  the  words  "  legal  representatives  "  mean,  or  even 
include,  assigns,  or  persons  succeeding  by  any  act  of  his;  for  he 
is  shorn  of  all  power  to  create  a  successor  b}'  assignment,  deed, 
or  otherwise.  This  being  so,  the  words  cannot  mean  or  include 
assigns  or  grantees.  The  creditor  of  the  trust  is  here  speaking 
of  lands,  —  of  real  estate,  —  and  says  that  upon  his  death  the 
property  shall  descend  to  his  legal  representatives  ;  and  he  then 
goes  on  to  say  that  the  adopted  son  of  William  G.  Ewing  shall 
in  no  event  inherit  or  be  entitled  to  any  part  of  the  property. 
The  evident  and  manifest  meaning  of  the  trust  as  declared  is 
that  upon  the  death  of  the  donor  the  remaining  property  shall 
pass  to,  and  become  the  property  of,  those  persons  upon  whom 
the  law  would  cast  the  property,  had  the  donor  died  seised  of  it. 
The  term,  therefore,  means  heirs,  as  here  used. 

3.  The  question  then  arises  whether  the  quitclaim  deed  from 
the  trustee  back  to  George  W.  Ewing,  Jr.,  the  donor,  had  the 
effect  to  revoke  the  trust.  That  such  was  its  object  is  clear,  for 
the  deed  so  declares.  As  preliminary  to  the  disposition  of  this 
question,  it  is  to  be  observed  that  the  trust  is  well  and  properly 
declared,  and  that,  too,  in  the  most  formal  way;  for  the  deed 
of  trust  conveys  a  fee  simple  to  the  trustee,  and  then  specifies 


WORDS    OF   LIMITATIONS    IN    A    DEED   TO    TRUSTEES.  21 

tho  purposes  for  which  the  trustee  takes  and  holds  the 
property.  There  is  here  a  perfect,  completed,  executed  trust, 
and,  this  being  so,  it  is  immaterial  whether  the  trust  is  to  be 
deemed  a  voluntary  one,  or  made  ui)on  a  valuable  considera- 
tion ;  tor,  being  a  perfect  and  completed  trust,  it  must  be  en- 
forced in  either  event.  Leeper  v.  Taylor  (Mo.  Sup.),  19  S. 
W.  Rep.  955.  Tho  trusts  declared  arc  to  sell  and  convey  as  the 
trustee  shall  deem  best ;  to  reinvest  the  proceeds  on  the  same 
trusts,  or  apply  them  in  improving  the  other  property ;  to 
apply  the  income  and  profits  to  the  extent  that  the  trustee  shall 
deem  sufficient  to  the  maintenance  of  the  donor.  At  his 
death  the  active  trust  ceases,  and  the  property  passes  to  those 
persons  who  answer  the  description  of  heirs  of  the  donor.  It 
must  follow  that  such  persons  are  l)eneficiaries  of  the  trust,  as 
well  as  the  donor  himself.  No  power  of  revocation  is  reserved 
by  the  donor. 

Now,  a  completed  trust,  without  reservation  of  power  of 
revocation  can  only  be  revoked  by  the  consent  of  all  of  the 
beneficiaries.  Says  Perry,  "  A  trust  once  created  and  accepted, 
without  reservation  of  power,  can  only  be  revoked  by  the  full 
consent  of  all  parties  in  interest.  If  any  of  the  parties  are  not 
in  being,  or  are  not  sia' yuH.s,  it  cannot  be  revoked  at  all." 
Perry  Trusts  (4th  Ed.),  §  104.  Applying  this  principle,  it 
must  be  held  that  the  quitclaim  deed  did  not  revoke  the  trust. 
As  to  the  plaintiff  it  was  and  is  a  nullity.  Indeed  it  has  been 
held  by  the  Supreme  Court  of  Indiana  and  of  Minnesota  that 
the  very  quitclaim  deed  now  in  question  did  not  terminate  or 
destroy  the  trust,  and  that  it  was  out  of  the  power  of  the 
trustee  or  donor,  or  l)oth  combined,  to  revoke  or  destroy  the 
trust.  Ewing  V.  Warner,  47  Minn.  446;  50  N.  W.  Rep.  603; 
Ewing  V.  Jones  (Ind.  Suf).),  29  N.  E.  Rep.   1057. 

4.  It  follows  from  what  has  been  said  that  the  plaintiff  is  en- 
titled to  recover,  unless  barred  by  the  statute  of  limitations  ;  and 
this  presents  the  most  difficult  question  in  this  case.  The  trust, 
it  will  be  remembered,  was  created  by  the  deed  of  George  W. 
Ewing,  Jr.,  to  George  W.  Ewing,  Sr.,  dated  the  31st  December, 
1863  ;  and  the  attempted  deed  of  revocation  bears  date  March  1, 
1866.  The  trustee  died  in  May  of  that  year,  and  the  plaintiff 
was  born  6th  of  September  of  the  same  year.  George  W.  Ewing, 
Jr.,  the  creator  of  the  trust,  conveyed  this  lot  to  the  defendant 
15th  July,  1867,  and  died  in  December,  1872.  This  suit  was 
commenced  13th  September,  1880,  two  years  and  a  few  days  after 
the  plaintiff  attained  the  age  of  21.  No  right  of  entry  accrued  to 
the  plaintiff  until  the  death  of  his  father,  which  was  in  1872. 
He  was  at  that  time  a  minor ;  and,  as  he  brought  this  action 


22  ESTATES    IN  FEE    SIMPLE. 

within  three  years  after  the  removal  of  the  disability  of  infancy, 
he  is  not  barred,  unless  he  is  barred  because  an  action  by  the 
trustee  would  be  barred.  While  there  was  some  doubt  at  one 
time,  the  law  is  now  well  settled,  both  in  England  and  in  this 
country,  that  the  rule  that  the  statute  of  limitations  does  not  bar 
a  trust  estate  holds  only  as  between  cestui  que  (rust  and  trustee, 
and  not  between  cestui  que  trust  and  trustee  on  the  one  side,  and 
strangers  on  the  other  side.  Therefore,  where  a  cestui  que  trust 
and  his  trustee  are  both  out  of  possession  for  the  time  limited,  the 
party  in  possession  has  a  good  bar  against  them  both.  Where  the 
trustee  is  barred, so  is  the  ces^iu'.  2  Perry  Trusts  (4th  Ed.  )>  §  858  ; 
Hill  Trustees  (4th  Amer.  Ed.),  pp.  413,441;  Herndon  v.  Pratt, 
6  Jones  Eq.  327;  Clayton  v.  Cagle,  97  N.  C.  300;  1  S.  E.  Rep. 
523;  Woolridge  v.  Bart,  1  Sneed,  297;  Merriam  v,  Hassam,  14 
Allen,  516  ;  Smilie  v.  Biffle,  2  Pa.  St.  52.  Perry  says,  in  the 
section  just  mentioned:  "  But  it  would  seem  that,  if  the  cestui 
que  trust  is  entitled  to  an  interest  in  remainder  only,  the  statu- 
tory bar  ought  not  to  begin  to  run  against  him  until  his  interest 
falls  into  a  right  to  the  possession  of  the  beneficial  or  equitable 
interest," — citing  Parker  v.  Hall,  2  Head,  641.  Hill  says  it 
seems  somewhat  doubtful  how  far  the  infancy  of  the  cestui  que 
trust  will  prevent  the  adverse  possession  of  a  stranger  from 
operating  as  a  bar  to  their  claims,  but  he  seems  to  think  the 
true  doctrine  of  the  English  courts  is  that  a  fine  and  nonclaim 
should  bar  the  cestui  que  trust,  though  an  infant.  Wood  says: 
"  When  the  legal  title  of  property  is  vested  in  a  trustee,  who 
can  sue  for  it,  and  fails  to  do  so  within  the  statutory  period,  an 
infant  cestui,  who  has  only  an  equitable  interest,  will  also  be 
barred;  but  the  rule  is  otherwise  when  the  legal  title  is  vested 
in  the  infant,  or  cast  upon  him  by  operation  of  law."  Wood 
Lim.  Act,  §  208.  These  extracts  from  the  text-books  disclose 
a  want  of  any  well-defined  rule,  and  it  is  deemed  best  to  examine 
the  cases  themselves.  In  Parker  v.  Hall,  supra,  a  guardian  of 
minor  children  purchased  certain  slaves  with  the  money  of  his 
wards,  and  took  a  bill  of  sale  in  his  own  name  as  such  guardian, 
which  was  duly  registered.  He  sold  the  slaves  while  his  wards 
were  yet  minors,  and  died  insolvent.  Thereafter  the  wards,  one 
being  then  a  minor,  filed  a  bill  against  the  purchaser  for  possession 
of  the  slaves.  The  court  held  that  the  rule  that  when  the 
trustee  is  barred  all  the  beneficiaries  are  also  barred  did  not 
apply,  because  the  trustee,  the  holder  of  the  legal  estate,  had 
estopped  himself  from  suing  by  making  a  bill  of  sale  to  the 
purchaser,  and  because  he  had  united  with  the  purchaser  in  a 
breach  of  the  trust;  and  the  same  court  held  that  where  the 
trustee  took  but  a  life  estate  the  statute  of  limitations  would  not 


AVORDS  OF    LIMITATIONS  IN    A    DEED  TO  TRUSTEES.  23 

run,  as  against  the  remainder-men,  until  the  death  of  the  life 
tenant.  Belote  v.  White,  2  Head,  703.  But  in  Williams  v. 
Otley,  8  Humph.  563,  it  was  said:  "  Whenever  a  trustep,  having 
the  legal  title,  neglects  to  sue  till  he  is  barred  by  the  statute  of 
limitations,  the  cestui  que  trust  is  likewise  barred  though  an 
infant  under  twenty-one  years  of  age."  In  Bull  v.  Walker,  71 
Ga.  195,  the  will  gave  to  Susan  P.  Howard  certain  real  estate 
for  her  benefit  for  life,  and  then  to  her  children,  and  then  ap- 
pointed a  trustee  to  take  and  hold  the  property  for  her.  It  was 
held  the  statute  of  limitations  did  not  begin  to  run  against  the 
children  until  the  death  of  their  mother,  the  life  tenant;  but  it 
was  also  held  that  the  trustee  was  simply  a  trustee  for  the  life 
tenant,  and  that  his  only  duty  was  to  protect  the  life  estate  from 
sale  for  debts  of  the  life  tenant.  Gudgell  v.  Tydings  (Ky.), 
10  S.  W.  Rep.  466,  to  which  we  are  cited  by  the  plaintiff,  is  not 
essentially  different  from  the  case  last  mentioned.  But  in 
Wingfield  v.  Virginia,  51  Ga.  139,  the  title  was  vested  in  a 
trustee,  and  it  was  held  that,  the  trustee  being  barred,  the  bene- 
ficiaries, though  infants,  were  barred.  The  facts  of  that" case 
were  these  :  Weems  and  wife  executed  a  deed  conveying  the  land 
to  Wingfield  in  trust  for  certain  purposes,  one  of  which  was  to 
hold  the  same  for  the  sole  benefit  of  the  wife  of  Weems  and  her 
children,  born  and  to  be  horn  ;  the  income  to  be  applied  to  the 
support  of  the  fiimily,  and  not  subject  to  the  debts  of  Weems. 
The  trustee  and  Weems  and  wife  executed  deeds  conveying  the 
property  to  Wylie,  who  took  and  held  possession.  The  children 
of  Weems  and  wife,  being  still  minors,  filed  a  bill  against  those 
claiming  under  Wylie,  to  re-establish  the  trust ;  and  the  defend- 
ant set  up,  among  other  things,  the  statute  of  limitations.  The 
court  said:  "  The  distinction  is  this:  When  the  leg-al  title  to  the 
property  is  vested  in  a  trustee,  who  can  sue  for  it,  and  fails  to  do 
so  within  the  time  prescribed  by  law,  and  his  right  of  action  is 
barred,  the  infant  cestui  que  trustent,  who  have  only  an  equitable 
interest  in  the  property,  will  be  also  barred  ;  but  when  the  legal 
title  to  the  property  is  vested  in  the  infants,  or  cast  upon  them 
by  operation  of  law,  then  the  statute  does  not  run  against  them 
during  their  infancy.  In  the  case  before  us  the  legal  title  to 
the  property  in  controversy  was  never  in  complainants,  and 
could  not  be  until  the  death  of  Weems,  their  father,  and  there- 
fore Wylie's  title  by  prescription  was  good  as  against  Wing- 
field, the  trustee,  who  had  the  legal  title  to  the  property  ; 
and,  he  being  barred  from  recovering  the  possession  of  it, 
the  complainants,  his  infant  cestui  que  trustent^  are  also 
barred."  That  court  has  held  in  a  number  of  cases  that 
where  the  title  to  land  was  in  a  trustee,  and  he  failed  to  sue 


24  ESTATE    IN    FEE    SIMPLE. 

until  his  right  of  action  was  barred,  the  beneficiaries  were 
barred,  though  infants.  Brady  v.  Walters,  55  Ga.  29  ;  Knorr 
V.  Raymond,  73  Ga.  749,  and  cases  cited.  In  Molton  v.  Hen- 
derson, 62  Ahi.  426,  lands  were  devised  to  trustees  to  hold  for 
the  benefit  of  a  non  compos.  The  lands  were  sold,  by  order  of 
a  probate  court,  at  the  instance  of  a  guardian  of  the  non  compos, 
who  filed  a  bill,  by  his  next  friend,  to  subject  the  land  to  the 
trust  created  by  the  will.  The  court  held  that  the  guardian's 
sale  was  void,  but  that  the  purchaser  acquired  color  of  title. 
After  stating  the  general  rule  to  be  that,  if  a  trustee  delays  the 
assertion  of  his  rights  until  the  statute  effects  a  bar  against  him, 
the  cestui  que  trust  will  also  be  barred,  and  after  reviewing 
various  cases,  the  court  says:  *' On  principle  and  authority, 
therefore,  we  must  say  the  fact  that  the  appellee  was  non  com- 
pos mentis,  and  yet  so  remains,  cannot  prevent  the  operation  of 
the  general  rule  to  which  we  have  referred.  If  his  trustees  have 
been  negligent  in  asserting  the  legal  title  the  law  affords  him 
remedies  against  them,  which  are  without  the  operation  of  the 
statutes.  These  remedies,  if  he  has  been  wronged,  he  must 
pursue."  In  the  case  now  in  hand,  the  plaintiff  took  an  equita- 
ble contingent  remainder  by  force  and  efi'ect  of  the  deed  of  trust. 
Until  the  death  of  the  donor,  the  entire  legal  title,  a  title  in  fee 
simple,  was  vested  in  the  trustee.  It  was  the  duty  of  the  trustee 
to  protect  the  title  for  those  who  should  take  upon  the  death  of  the 
donor  as  well  as  for  the  donor  during  his  life.  To  this  end  the 
entire  legal  title  was  vested  in  the  trustee,  and  the  right  of  posses- 
sion was  in  him.  As  the  trustee  held  the  legal  fee-simple  title, 
and  the  right  of  possession  for  all  of  the  beneficiaries,  he  was  the 
proper  person  to  sue  for  possession  ;  and  we  think  the  case 
comes  within  the  rule  that  where  the  trustee  is  barred  by  lapse 
of  time  the  beneficiaries  are  also  barred,  and  that,  too,  though 
the  beneficiaries  are  minors.  That  which  bars  the  legal  title 
here  bars  the  equitable  title.  The  acceptance  of  a  trust  like  this 
is  not  a  meaningless  afiiiir,  and  if  the  trustee  has  made  breach  of 
the  trust,  and  wronged  the  plaintiff,  the  remedy  is  against  the 
trustee.  The  statute  of  limitations  is  one  of  repose,  and  should 
be  applied  in  this  case. 

It  is  true  the  trustee  died  before  George  W.  Ewing,  Jr.,  exe- 
cuted the  deed  to  the  defendant ;  and  it  does  not  appear  that 
Jesse  Holliday  ever  accepted  the  trust,  or  that  a  new  trustee  was 
ever  appointed  by  the  court,  as  provided  in  the  third  clause  of 
the  deed  of  trust.  But  the  legal  title  passed  to  the  heirs  of  the 
trustee,  and  it  does  not  appear  that  they  were  laboring  under 
any  disability.  It  became  their  duty  to  care  for  the  property, 
or  have  a  new  trustee  appointed.     Our  conclusion  is  that  the 


WORDS    OF   LIMITATIONS  IN  A  WILL.  25 

statute  began  to  run  against  both  the  legal  and  equitable  title 
when  defendant  took  possession  ;  that  the  legal  and  equitable 
titles  were  both  barred  by  ten  years'  adverse  possession,  and 
this,  too,  though  the  owner  of  the  equitable  title  was,  during 
all  that  time,  an  infant.  That  defendant's  possession  has  been 
adverse,  and  that,  too,  for  a  period  of  20  years,  cannot  be  ques- 
tioned. 

It  is  suggested  that  defendant  purchased  with  knowledge  of 
the  trust,  because  the  trust  deed  was  recorded;  and  that  he  did 
purchase  with  constructive  notice  must  be  conceded.  The  fact, 
however,  that  he  had  such  notice,  did  not  prevent  the  statute  of 
limitations  from  running.  If  that  were  so,  the  statute  would 
cease  to  be  one  of  repose.  The  statute  will  run  in  favor  of  even 
a  wrong-doer.  There  can  be  no  claim  that  defendant  was  guilty 
of  any  fraud.  On  the  contrary,  the  proof  shows,  beyond  all 
doubt,  that  he  paid  full  value  for  the  property,  believing  he  had 
acquired  a  perfect  title,  and  with  that  belief  made  improvements 
thereon  to  the  amount  of  $20,000. 

The  judgment  is  affirmed. 


Words  of  Limitation  in  Will  —  Held  to  Be  a  Life  Estate  and 

Not  a  Fee. 

Siddons  v.  Cockrell,  131  111.  653;  23  N.  E.  586. 

ScHOLFiELD,  J.  The  second  clause  of  the  last  will  and  testa- 
ment of  William  Y.  Hervey  reads  as  follows:  "I  will,  devise, 
and  bequeath  to  my  beloved  wife,  Nancy  Martha,  during  and  so 
long  as  she  remains  my  widow,  the  net  use  and  control  of  all 
the  real  estate  and  personal  property  of  which  I  may  die  seised, 
wherever  the  same  may  be  situated  or  found,  for  the  support  of 
herself  and  my  children.  Should  she  marry,  from  and  after 
such  miuriage  she  shall  have  and  control  only  one-third  in  value 
of  the  real  estate,  and  one-third  of  the  personal  property  then 
remaining,  absolute.  Should  she  survive  all  my  children,  they 
having  died  without  issue,  I  will,  devise,  and  bequeath  all  my 
real  estate  and  personal  property  to  be  hers,  her  heirs  and 
assigns,  forever.  But  in  case  of  the  death  of  my  wife,  leaving 
any  of  my  children  surviving,  I  will,  devise  and  bequeath  to 
thera  all  of  my  estate  in  equal  proportions,  share  and  share 
alike;  the  heirs  of  any  of  my  children  taking  their  deceased 
parents  share.  The  personal  property  I  devise  in  the  same 
manner  I  have  devised  the  real  estate,  and  subject  to  the  same 
order  of  distribution."     The  testator  was  the  owner  of  several 


26  ESTATES    IN   FEE   SIMPLE. 

hundred  acres  of  valuable  lands,  and  of  a  large  amount  of  per- 
sonal property,  at  the  time  of  his  death.  His  widow  named  in 
the  will,  and  six  children,  survived  him.  After  the  death  of  the 
testator  the  widow  mfirried  again.  One  of  the  children  died  in 
infancy,  and  before  the  subsequent  marriage  of  the  widow. 
Another  one  of  the  children  married,  had  a  child,  who  is  still 
living,  born  to  her,  and  after  the  birth  of  such  child,  and  the  sub- 
sequent marriage  of  the  widow,  conveyed  to  another  her  interest 
in  the  testator's  real  estate,  and  thereafter  died  intestate.  The 
other  children  are  still  living. 

The  questions  before  the  court  below  were:  (1.)  Does  the 
widow  take,  a  fee  or  a  life-estate,  after  her  marriage,  in  the  one- 
third  then  given  her  in  the  real  estate?  (2.)  Was  a  fee  vested 
in  the  children  which  could  pass  by  descent  immediately  upon 
the  death  of  the  testator?  The  court  below  found  that  the 
widow  took  a  life-estate  only  in  one-third  of  the  real  estate, 
after  her  marriage,  and  that  a  fee  was  vested  in  the  children 
immediately  upon  the  testator's  death,  which  passed,  upon  the 
death  of  the  child  dying  in  infancy,  and  before  the  subsequent 
marriage  of  the  widow,  to  the  heirs  at  law  of  such  child.  The 
appellant  contests  the  first  of  these  rulings;  and  these  appellees 
who  are  children  of  the  testator  contest  the  last.  The  other 
appellees  insist  upon  the  correctness  of  both  rulings. 

1.  Counsel  for  appellant  argue  that  by  the  use  of  the  words 
"  from  and  after  such  marriage  she  shall  have  and  control  only 
one-third  in  value  of  the  real  estate  and  one-third  of  the  per- 
sonal property  then  remaining,  absolute,"  the  testator  clearly 
intended  to  vest  a  fee  in  tlie  real  estate  in  his  widow ;  that 
"  have"  means  ownership:  *'  from  and  after,"  being  unlimited 
or  qualified  by  other  words,  mean  "  thenceforth  forever  ;  "  and 
that  "  absolute  "  refers  to  both  the  real  and  the  personal  estate, 
and,  applied  to  the  real  estate,  means  a  fee-simple,  in  contradis- 
tinction to  a  life-estate.  If  nothing  but  these  words  were  to  be 
considered  in  connection  with  the  devises,  there  would  be  much 
force  in  the  arijument.  But  the  familiar  rules  of  construing  wills 
require,  if  it  can  be  necessarily  given,  such  a  construction  as  shall 
give  force  and  effect  to  every  word  and  clause,  and  if  a  prior  and 
a  subsequent  clause  are  repugnant,  that  the  prior  clause  shall  be 
strained  or  modified  by  the  subsequent  clause.  Walker  v. 
Pritchard,  121  III.  221  ;  12  N.  E.  Rep.  339.  It  will  be  observed 
that,  in  clauses  subsequent  to  that  referred  to  and  relied  upon  by 
the  counsel,  the  testator  assumes  to  devise  all  of  his  real  estate 
in  fee  to  his  children  or  to  his  widow.  It  is,  of  course,  impos- 
sible to  give  one-third  of  his  real  estate  in  fee  to  his  wife,  and 
all  of  his  real  estate    in  fee    to  his  children;   and  vet  the  word 


WORDS    OF    LIMITATIONS    IN    A    WILL.  27 

*'  all,"  in  this  connection,  is  unqualified,  expressly  or  impliedly, 
by  any  modifying  word.  But  a  devijie  of  land,  without  the  use 
of  the  word  "  heirs,"  or  other  words  necessary  at  common  law 
to  pass  a  fee,  is  only  to  be  construed  as  a  devise  of  a  fee  when 
it  does  not  appear  from  the  entire  will  that  a  less  estate  was  in- 
tended (Walker  v.  Pritchard,  supra);  and  since  it  could  not 
have  been  intended  to  devise  b}^  the  subsequent  clause  what  was 
devised  by  the  prior  clause,  and  the  language  of  the  subsequent 
clause  has  preference  in  determining  what  is  devised  by  that 
clause,  it  must  have  been  intended  by  the  first  clause  to  devise 
a  life-estate,  as  between  a  devise  of  which,  and  of  a  fee  in  the 
same  land,  there  is  no  necessary  repugnance.  It  will  also  be 
further  observed  that  the  testator  in  the  first  clause  uses  the 
language,  "  she  shall  have  and  control,"  but  in  the  subsequent 
clause  he  uses  the  language  "  devise  and  bequeath  all  my  real 
estate,  *  *  *  to  be  hers,  her  heirs  and  assigns,  forever." 
This  change  of  phraseology  plainly  shows  that  what  was  intended 
by  the  latter  was  different  from  that  intended  by  the  former, 
and  that  the  testator  knew,  and  had  in  his  mind  at  the  time,  what 
language  to  use  to  devise  a  fee  so  that  this  meaning  could  not  be 
misunderstood.  The  meaning  of  the  word  "absolute,"  in  the 
connection  in  which  it  occurs,  in  our  opinion,  has  reference  to 
the  personal  property  only,  and  was  not  intended  to  be  descriptive 
of  the  real  estate. 

The  widow  might,  had  she  so  elected,  have  renounced  under 
the  will,  and  have  taken  the  interest  in  the  testator's  estate  that 
she  would  have  taken  had  he  died  intestate,  namely,  dower  in 
the  lands  (section  1,  c.  41,  Rev.  St.  1874),  and,  "  as  her  abso- 
lute personal  estate,  one-third  of  all  the  personal  estate  "  (clause 
4,  §  1,  c.  39,  Rev.  St.  1874).  And  it  is  fairly  to  be  inferred 
that  the  testator  intended  that  if  his  widow  married  again  she 
should  have  only  what  she  would  have  taken  under  the  law  if  he 
had  made  no  will,  or  what  she  would  have  taken  under  the  law 
by  renouncing  under  his  will  and  in  spite  of  his  will.  Such 
provisions  are  presumably  intended  to  discourage  rather  than 
to  invite  subsequent  marriages ;  and  it  would  therefore  be 
unreasonable  to  assume  that  the  word  "  absolute  "  was  here 
intended  to  express  the  idea  of  a  conveyance  of  real  estate 
in  fee  so  long  as  any  other  rational  meaning  can  be  assigned 
to  it. 

There  is  another  view  that  we  think  might  well  be  taken  of  the 
intention  in  using  that  word.  The  use  and  control  given  of  the 
property  devised  before  subsequent  marriage  is  expressed  to  be 
for  the  support  of  the  widow  and  the  testator's  children,  but  tb^" 
property  given  to  her  afterwards  is  for  herself  alone ;  and  so  fhfo 


28  ESTATES  IN  FEE  SIMPLE. 

word  '*  absolute  "  may  reasonably  be  held  to  express  that  idea  — 
the  unrestricted,  i.  e.,  absolute,  use  by  the  widow,  for  herself, 
in  contradistinction  to  the  former  joint  use,  for  herself  and  the 
testator's  children.  The  words  "from  and  after"  imply 
futurity,  "indefinitely,"  simply,  and  are  clearly  restricted  li)y 
the  purpose  of  the  devise  as  manifested  by  the  entire  will. 

2.  In  the  absence  of  a  clearly  manifested  intention  to  the  con- 
trary, it  must  be  presumed  that  the  testator  intended  to  dispose 
of  all  of  his  estate.  So,  also,  the  heir  at  law  is  not  to  be  disin- 
herited unless  the  intent  to  do  so  is  very  clearly  expressed.  1 
Kedf.  Wills,  §  18,  p.  434.  The  devise  of  the  use  and  control 
of  the  real  estate  being  in  effect  a  devise  of  the  real  estate  itself, 
the  devise  in  the  first  instance  was  of  a  life-estate,  determinable, 
however,  as  to  two-thirds  thereof,  upon  the  subsequent  marriage 
of  the  widow  (1  Prest.  Est.  442);  and  there  was  a  reversion 
Still  left  in  the  testator  to  be  devised  (Tied.  Real  Prop.,  §  386; 
State  V.  Brown,  27  N.  J.  Law,  20;  McKelway  v.  Seymour,  29 
N.  J.  Law,  329).  The  devise  of  the  reversion  in  the  two-thirds 
of  the  real  estate,  in  the  event  of  the  subsequent  marriage  of 
the  widow,  would  therefore  have  to  take  effect  immediately 
upon  such  marriage;  and  we  must  assume  that  the  testator 
intended  that  it  should  then  take  effect.  But  there  is  nothing 
in  the  language  of  the  will  that  warrants  the  conclusion  that  the 
title  devised  was  intended  to  be  vested  at  different  times, 
although  the  enjoyment  of  one-third  of  the  estate  is  postponed 
until  alter  the  death  of  the  widow.  The  will  should  therefore 
be  read  as  follows,  after  the  devise  to  the  widow  :  "  1  devise  all 
my  remaining  real  and  personal  estate  to  my  children  ;  and  if 
any  children  be  dead,  leaving  children  surviving  them,  then  to 
them,  also,  the  children  of  a  deceased  child  taking  the  pait  of 
their  parent.  But  if  all  my  children  shall  die,  without  issue, 
before  my  wife  shall  die,  1  devise  the  same  to  her."  The  estate 
devised  is  clearly  intended  to  be  a  fee-simple  in  whomsoever 
shall  take.  The  title  was  intended  to  vest  immediately  upon 
the  death  of  the  testator,  and  so,  necessarily,  he  must  have 
intended  children  or  children's  children  in  being  at  his  death; 
and  the  deaths  contemplated  were  necessarily  deaths  in  the  life- 
time of  the  testator.  Briggs  v.  Shaw,  9  Allen,  516;  Fulton  v. 
Fulton,  2  Grant  Gas.  28;  Moore  v.  Lyons,  25  Wend.  119; 
Freeman  v.  Goit,  96  N.  Y.  68.  We  find  no  error  in  the  record. 
The  judgment  is  affirmed. 


LIMITATION    OF    AN    ESTATE   TAIL    SPECIAL.  29 

CHAPTER     IV. 

ESTATES  TAIL. 

Lehndorf  u.  Cope,  122  111.  317;  13  N.  E.  505. 
Wheart  v.  Cruiser,  49  N.  J.  L.  475;  13  A,  36. 

Limitation  of  an  Estate  Tail   Special. 

Lehndorf  v.  Cope,  122  111.  317;  13  N.  E.  505. 

Shope,  J.  It  is  contended  by  appellee  that  by  the  deed  of 
August  3,  1883,  from  Humphrey  and  wife  to  "  Maria  Anna  Lehn- 
dorf, and  her  heirs  by  her  present  husband,  Henry  Lehndorf," 
Mrs.  Lehndorf  took  a  fee-simple  estate  in  the  lands  conveyed; 
while  appellants  contend  that  she  thereby  took  a  life-estate  only, 
with  remainder  in  fee  to  her  children  by  said  Henry  Lehndorf. 
The  deed,  being  statutory  in  form,  contains  no  liahendum  limit- 
ing or  defining  the  estate  taken  by  Mrs.  Lehndorf;  and  although 
the  deed  must  be  held  equivalent  to  one  containing  full  covenants 
(Elder  v.  Derby,  98  III.  228),  it  is  manifest  that  the  estate 
granted  would  not  be  enlarged  or  restricted  thereby.  Such  cov- 
enants are  an  assurance  of  the  title  granted  to  the  grantees, 
whomsoever  they  may  be.  If  Mrs.  Lehndorf  took  the  fee,  the 
covenants  assure  that  estate  to  her  ;  if  she  takes  an  estate  in  tail, 
the  covenantor  warrants  to  her  a  life-estate,  and  the  remainder 
in  fee  to  whoever  would  take  upon  determination  of  her  estate. 
Therefore,  as  said  by  counsel  for  appellees,  the  determination  of 
the  question  depends  upon  a  construction  of  the  granting  clause 
of  the  deed,  which  is  that  the  grantors,  in  consideration,  etc., 
"  convey  and  warrant  to  Maria  Anna  Lehndorf,  and  her  heirs 
by  her  present  husband,  Henry  Lehndorf,  of,"  etc.,  the  lands 
in  controversy. 

The  legitimate  purpose  of  all  construction  of  a  contract  or 
other  instrument  in  writing  is  to  ascertain  the  intention  of  the 
party  or  parties  in  making  the  same;  and,  when  this  is  deter- 
mined, effect  will  be  given  thereto,  unless  to  do  so  would  violate 
some  established  rule  of  property.  The  nature  and  quantity  of 
the  interest  granted  by  a  deed  are  always  to  be  ascertained  from 
the  instrument  itself,  and  are  to  be  determined  by  the  court  as 
a  matter  of  law.  The  intention  of  the  parties  will  control  the 
court  in  construction  of  the  deed ;  but  it  is  the  intention  appar- 
ent and  manifest  in  the  instrument,  construing  each  clause,  word, 
and  term  involved  in  the  construction  according  to  its  legal  im- 
port, and  giving  to  each,  thus  construed,  its  legal  effect.  3 
Washb.  Real  Prop.  404  ;  Bond  v.  Fay,  12  Allen,  88  ;  Lippett  v. 
Kelley,  46  Vt.  516;  Price  v.   Sisson,    13  N.  J.  Eq.  169,  178; 


30  ESTATES   TAIL. 

Caldwell  v.  Fulton,  31  Pa.  St.  489  :  Waj^er  v.  Wager,  1  Serg. 
&  R.  374.  It  cannot  be  presumed  that  the  parties  used  words 
or  terms  in  the  conveyance  without  intending  some  meaning: 
should  be  given  them,  or  without  an  intent  that  the  etFcct  legiti- 
mately resulting  from  their  use  should  follow;  hence,  if  it  can 
be  done  consistently  with  the  rules  of  law,  that  construction  will 
be  adoj[)ted  which  will  give  effect  to  the  instrument,  and  to  each 
word  and  term  employed,  rejecting  none  as  meaningless  or 
repugnant. 

Wc  should,  perhaps,  first  notice  the  contention  of  counsel  for 
appellee  that,  by  virtue  of  section  13  of  the  conveyance  act  (as 
there  is  here  no  express  limitation  upon  the  estate  of  Mrs.  Lehn- 
dorf,  and  as  no  one  can  have  heirs  while  living),  the  words  fol- 
lowing the  grant  to  her  should  be  rejected,  and  the  deed  read  as 
if  to  her  only.  This  arises  from  a  misapprehension  of  the 
statute.  The  evident  purpose  of  the  section  referred  to  was  to 
change  the  rule  of  the  common  law,  whereby,  if  a  conveyance, 
etc.,  was  made  without  words  of  inheritance,  an  estate  for  the 
life  of  the  grantee  only  was  created.  The  section  is  as  follows  ; 
*'  Sec.  13.  Every  estate  in  lands  which  shall  be  granted,  con- 
veyed, or  devised,  although  other  works  heretofore  necessary  to 
transfer  an  estate  of  inheritance  be  not  added,  shall  be  deemed  a 
fee-simple  estate  of  inheritance,  if  a  less  estate  be  not  limited  by 
express  words,  or  do  not  appear  to  have  been  granted,  conveyed, 
or  devised  by  construction  or  operation  of  law."  It  is  not  nec- 
essary, as  seems  to  be  supposed,  that, to  create  a  less  estate  than 
the  fee,  there  should  be  express  words  of  limitation,  either 
under  the  statute  or  at  common  law.  It  is  sufficient  for  that 
purpose  if  it  appear  by  necessary  implication  that  a  less  estate 
was  granted. 

In  an  early  case  (Frogmorton  v.  Wharrey,  2  W.  Bl.  728), 
where  there  was  a  surrender  of  copyholds  by  R.,  who  was  seised 
in  fee,  to  M.,  his  then  intended  wife,  and  the  heirs  of  their 
two  bodies,  etc.,  Wilmot,  C.  J.,  delivering  the  opinion  of  the 
court  for  himself,  Bathurst,  Gould,  and  Blackstone,  J.T.,  after 
holding  on  authority  of  Gossage  v.  Tayler,  Style,  325,  and 
Lane  v.  Pannell,  1  RoUe,  438,  that  the  children  thus  begotten 
took  as  purchasers,  and  not  as  heirs,  says  the  only  difference  in 
the  cases  is  that  in  those  cases  "  the  wife  had  an  express  estate 
for  life,  and  here  not.  But  upon  legal  principle  the  cases  are 
just  alike.  An  estate  '  to  A.  and  the  heirs  of  his  body,  is  the 
same  as  an  estate  *  to  A.  for  life,  remainder  to  the  heirs  of  his 
body.'  "  By  operation  of  law,  the  added  words  created,  in  the 
case  cited  in  M.  a  life-estate  only,  with  remainder  to  the  heirs  of 
herself  and  R.,  as  purchasers.     So  the  grant  "to  A.  and   the 


LIMITATION    OF    AN    KSTATE    TAIL    SPECIAL.  31 

heirs  of  his  body,"  by  operation  of  law,  creates  an  estate-tail 
iu  A. ;  remainder  in  tail.  And  this  has  been  the  uniform  holding. 
The  sixth  section  of  the  conveyance  act  provides  that  in  cases 
where,  by  the  common  law,  any  person  or  persons  might,  after 
its  passage,  become  seised  in  fee-tail  of  any  lands,  etc.,  by 
virtue  of  any  gift,  devise,  grant,  or  conveyance  **  hereafter  to 
be  made,"  or  by  any  other  means  whatsoever,  such  person  or 
persons,  instead  of  being  or  becoming  seised  thereof  in  fee-tail, 
shall  be  deemed  and  adjudged  to  be  and  become  seised  thereof 
for  his  natural  life  only,  and  the  remainder  shall  pass,  in  fee- 
simple  absolute,  to  the  person  or  persons  to  whom  the  estate- 
tail  would  on  the  death  of  the  first  grantee  or  donee,  pass 
according  to  the  course  of  the  common  law,  by  virtue  of  such 
gift,  devise,  or  conveyance. 

It  is  apparent  if,  at  common  law,  by  virtue  of  this  conveyance, 
Mrs.  Lehndorf  would  take  an  estate-tail,  whether  an  estate-tail 
general  or  an  estate-tail  special,  the  thirteenth  section  would  be 
inoperative,  and  by  virtue  of  section  6  she  would  become  seised 
of  an  estate  for  her  life,  with  remainder  in  fee  to  those  to  whom 
the  estate  is  immediately  limited. 

Estates-tail  came  into  general  use  upon  construction  by  the 
courts  of  the  statute  de  donis  conditio nalibus  (13  Edw.  I.  c.  1); 
and,  while  no  extended  discussion  will  be  necessary,  an  examina- 
tion sufficient  to  determine  if  this  case  falls  within  the  rules 
creating  an  estate-tail  will  be  |>roper.  To  create  an  estate  in 
fee-simple  at  common  law,  the  grant  must  be  to  the  grantee  and 
his  heirs,  without  limitation,  to  take  from  generation  to  genera- 
tion in  the  regular  course  of  descent.  A  tenant  in  fee-simple  is 
defined  by  Blackstone  to  be  *'  lie  that  hath  lands,  tenements,  or 
hereditaments,  to  hold  to  him  and  his  heirs  forever,  generally, 
absolutely,  simply;  without  mentioning  ?«/mH]eirs,  but  refer- 
ring that  to  his  own  pleasure,  or  the  disposition  of  the  law." 
2  Bl.  Comm.  104.  Estates  in  fee-tail  were  of  two  kinds: 
Estates-tail  general,  as  where  the  grant  was  to  one,  and  the 
heirs  of  his  body  generally,  so  that  his  issue  in  general,  by  each 
and  all  marriages,  are  capable  of  taking  per  formam  doni ; 
and  estates-tail  special,  where  the  gift  or  grant  wms  restricted 
to  certain  heirs,  or  class  of  heirs,  of  the  donee's  l»ody.  2  Bl. 
Comm.  113,  114;  4  Kent  Comm.  11;  1  Washh.  Real  Prop. 
*66.  In  a  grant  of  lands,  words  of  inheritance  were  necessary 
at  common  law  to  the  creation  of  a  fee  ;  but  in  the  creation  of  a 
fee-tail  estate  more  was  required.  There  must  also  be  words  of 
procreation,  indicating  the  body  out  of  which  the  heirs  were  to 
issue,  or  by  whom  they  were  to  be  begotten.  The  ordinary 
formula  was  to  make  the  gift  or  grant   to   the  donee,   as  th€ 


32  ESTATES    TAIL". 

grantee  was  called,  •'  and  the  heirs  of  his  body,"  or  "  her  heirs 
upon  her  body  to  be  begotten,"  or  "  upon  her  body  to  be 
begotten  by  A."  But  there  was  no  special  efficiency  in  these 
particular  forms  of  words,  and  it  was  requisite  only  that,  in 
addition  to  limitation  to  '*  heirs,"  the  description  of  the  heirs 
should  be  such  that  it  should  appear  they  were  to  be  the  issue  of 
a  particular  person.  2  Bl.  Coinm.  114;  1  Washb.  Real.  Prop. 
*72;   2  Prest.  Est.  478,  and  cases  cited;  2  Jarm.  Wills,  325. 

The  necessary  words  of  inheritance  are  not  here  wanting  to 
create  a  fee-simple  or  a  fee-tail  at  common  law.  The  grant  is  to 
Mrs.  Lehndorf  and  her  heirs,  and,  if  the  description  had  stopped 
here,  a  fee-simple  estate  would  at  common  law  have  passed  by 
the  deed.  The  grant  is  not,  however,  to  her  and  her  heirs 
simpliciter^  but  to  her  and  her  heirs  by  a  particular  husband, 
and  by  necessary  implication  excludes  the  construction  that  heirs 
generally  were  intended.  Heirs  generally  would  include,  not 
only  those  designated,  but  children  she  may  have,  or  have  had 
by  any  other  husband,  as  well  as  collaterals.  Who,  under  the 
law,  could  be  her  heirs  by  her  present  husband  except  her  chil- 
dren by  him  begotten?  If  the  word  "  begotten  "  had  been  in- 
troduced before  the  preposition  *'  by,"  so  that  it  would  have 
read  "  her  heirs  begotten  by  her  present  husband,"  etc.,  it 
would  have  been  no  more  certain  that  the  issue  of  her  body  was 
intended.  If  it  be  conceded  that  the  equivalent  words,  which 
by  necessary  implication  describe  and  designate  the  particular 
body  out  of  which  the  heirs  should  proceed,  would  suffice  to 
create  an  estate-tail  at  common  law,  which  seems  to  be  done  by 
the  cases  and  text-wr iters,  then  the  conclusion  seems  irresistible 
that  such  an  estate  was  here  created.  "  Her  heirs  by  her 
present  husband  "  could  be  no  other  than  the  issue  of  her  body 
by  him  begotten;  no  other  person  or  class  of  persons  would 
answer  the  description,  and  they  would  and  do  fill  it  in  every 
particular. 

This  precise  point  was  ruled  in  Wright  v.  Vernon,  1  Drew. 
439,  where  it  is  said;  "  The  effect,  therefore,  of  a  limitation  '  to 
the  right  heirs  of  Sir  Thomas  Sanwell  by  a  particular  wife  for- 
ever,' is  precisely  the  same  as  that  of  a  limitation  to  the  heirs  of 
his  body  by  that  particular  wife  forever.  The  words  '  of  his 
body  '  are  not  in  the  least  degree  necessary  to  this  construction 
of  the  term  '  heirs  '  or  *  right  heirs,'  because,  without  their  inser- 
tion, the  full  and  absolute  effect  of  them  is  involved  in  the 
description,  *  his  right  heirs  by  Mary,  his  second  wife;  '  which 
description  limits  the  meaning  of  the  term  '  heirs  '  to  heirs 
special,  procreated  by  himself,  as  effectually  and  as  necessarily 
aa  the  words  '  of  his  body,'  could  do  if  they  had  been  added." 


LIMITATION   OF   AN   ESTATE   TAIL   SPECIAL.  33 

This  was  a  case,  it  is  true,  !U'i??ing  upon  a  devise,  in  respect  of 
which  much  greater  hititude  of  construction  is  allowable  than  in 
the  construction  of  deeds  ;  but  that  consideration  can  in  no  way 
affect  the  weight  of  the  authority  upon  the  matter  being 
considered. 

It  follows  that  Mrs,  Lehudorf  would,  at  common  law,  be 
seised,  by  virtue  of  this  conveyance,  of  an  estate-tail  special  in 
the  lands  conveyed,  and  therefore,  under  the  statute,  would  take 
an  estate  for  her  life  only  ;  and  that,  by  virtue  of  the  statute 
cited,  the  remainder  vested  in  fee  in  her  children  by  her  said 
husband  in  esse  at  the  time  of  making  the  deed, —  subject,  pos- 
sibly, however,  to  be  opened  to  ht  in  after-born  children  of  the 
same  class.  If  no  issue  of  her  body  "  by  her  present  husband" 
had  been  then  living,  the  remainder  would  have  fallen  under 
Fearne's  fourth  and  Blackstone's  first  definition  of  a  contingent 
remainder;  i.  e.,  when  the  remainder  is  limited  "  to  a  dubious 
and  uncertain  person."  But  here,  at  least  two  of  the  children 
who  would,  under  the  statute,  take  the  fee-simple  estate  upon 
the  termination  of  the  life-estate,  were  in  being  when  the  deed 
was  executed  and  delivered,  and  the  remainder  vested  immedi- 
ately in  them  in  fee,  subject  to  the  possible  contingency  of  be- 
ing divested  j!;?-o  tanto^  if  opened  to  let  in  after-born  children 
answering  the  same  description.  The  person  to  whom  the  re- 
mainder is  limited  is  ascertained;  the  event  upon  which  it  is  to 
take  effect  is  certain  to  happen;  and,  although  it  may  be  de- 
feated by  the  death  of  such  person  before  the  determination  of 
the  particular  estate,  it  is  a  vested  remainder.  "  It  is  the  un- 
certainty of  the  right  of  enjoyment  which  renders  a  remainder 
contingent;  not  the  uncertainty  of  its  actual  enjoyment."  Bl. 
Comm.  i  i,  lb9;  Fearne  Rem.  149;  4  Kent  Comm.  203;  Haw- 
ley -y.  James,  5  Paige,  467 ;  Williamson  V.  Field,  2  Sandf.  Ch. 
533;   Moore  V.  Lyons,  15  Wend.  144. 

But  it  is  said  that  the  rule  in  Shelley's  Case  should  be  applied  ; 
but  it  will  be  seen  that  its  application  will  produce  the  same 
result.  That  rule,  as  formulated  by  Jarman  in  his  work  on 
Wills,  p.  331,  will  best  illustratethe  })osition  here.  It  is:  "The 
rule  simply  is:  that  where  an  estate  of  freehold  is  limited  to 
a  person  and  the  same  instrument  contains  a  limitation,  either 
mediate  or  immediate,  to  his  heirs,  or  the  heirs  of  his  body, 
the  word  'heirs'  is  a  word  of  limitation  *.  e.,  the  ancestor 
takes  the  whole  estate  comprised  in  this  term.  Thus,  if  the 
limitation  be  to  the  heirs  of  his  body,  he  takes  a  fee-tail;  if  to 
his  heirs  general,  a  fee-simple."  The  rule  operates  upon  the 
words  of  inheritance  without  affecting  the  words  of  procreation  ; 
so  that  if  in  any  case  the  words  "  heirs  of  his  body  "  or  other 

3 


34  ESTATES    TAIL. 

equivalents  sufficient  to  create  an  estate-tail,  are  used,  a  fee-tail 
is  vested  in  the  firi^t  taker,  and  not  the  fee-simple,  as  seems  to 
bo  f-upposed.  Therefore,  if  the  rule  ho  applied,  Mrs.  Lehndorf 
would  at  common  law  be  seised  of  an  estate  in  fee-tail,  and 
brou<;ht  directly  within  the  terms  of  section  G  of  the  conveyance 
act  before  cited.  When,  therefore,  Mrs.  Lehndorf,  joined  by 
her  husband,  mortgaged  the  land  to  Humphrey,  it  was  not  in 
her  power  to  incumber  the  fee  ;  and  that  estate  passed  to  and 
vested  in  her  two  children  then  living,  unincumbered  by  the  lien 
created  by  the  mortgage. 

But  it  is  said  this  mortgage  was  given  for  the  purchase  money 
of  the  land,  and  that  in  some  way,  not  clearly  defined  in  argu- 
ment, a  lien  therefor  exists  upon  the  estate  conveyed.  If  it  is 
intended  thereby  to  insist  that  a  vendor's  lien  exists,  the  answer 
to  such  a  contention  would  be  threefold.  A  vendor's  lien  upon 
real  estate  is  a  creation  of  the  courts  of  equity,  upon  the  equita- 
ble consideration  that  where  the  vendor  has  taken  no  security  for 
the  purchase  money,  and  done  no  act  showing  an  intention  to 
waive  the  lien,  it  is  presumed  that  it  was  not  the  intention  of  the 
parties  that  one  should  part  with  it,  and  the  other  acquire,  the 
title,  without  payment  of  the  purchase  price  of  the  land.  It 
exists,  if  at  all,  independent  of  any  contract,  —  is  personal  to 
the  vendor  ;  and  whenever,  from  the  circumstances,  the  court 
can  infer  that  he  did  not  rely  upon  the  lien  at  the  time  of  the  sale, 
or  subsequently  abondoned  it  as  security,  it  will  be  held  to  be 
waived.  Pom.  Eq.  Jur.  ;  Cowl  v.  Varnum,  37  111.  184;  Rich- 
ards V.  Learning,  27111.  432.  Thus  taking  an  independent  secur- 
ity will  discharge  the  lien.     Conover  v.  Warren,  1  Oilman,  498. 

It  is  manifest  that  when  the  deed  and  mortgage  back  to  secure 
the  purchase  money  are  parts  of  a  single  transaction,  as  in  this 
case,  that  one  estate  may  be  conveyed  by  the  deed,  and  a  wholly 
different  interest  conveyed  by  the  mortgage;  as  if  the  fee  be 
granted  bjM he  deed,  and  an  estate  for  life  or  for  years  mort- 
gaged. The  power  of  the  parties  to  so  contract  cannot  be 
questioned.  If  the  vendor  saw  proper  to  take  security  by  mort- 
gage upon  less  than  the  whole  land,  or  upon  less  than  the  estate 
conveyed,  for  the  unpaid  purchase  money,  there  is  no  reason 
why  it  would  not  be  a  valid  contract,  and  the  residue  of  the  land 
or  estate  pass  by  the  deed  unincuml)ered  by  any  lien  in  his  favor. 
But  the  bill  in  this  case  is  for  the  foreclosure  of  the  mortgage 
given  to  secure  the  purchase  money,  and  proceeds  upon  the  the- 
ory that  in  equity  the  mortgage  attached  to  and  became  a  lien 
upon  the  fee,  which  is  alleged  to  be  in  Mrs.  Lehndorf,  and  is 
to  enforce  the  security  under  the  contract, — a  theory  wholly 
inconsistent  with  the  preservation  of  the  vendor's  lien. 


Limitation  of  an  estate  tail  special.  35 

Again,  as  before  said,  the  lion  created  by  implication  in  favor 
of  the  vendor  is  personal  to  liini,  and  is  not  assignable  or  trans- 
ferable, even  by  express  contract,  between  the  vendor  and  an 
assignee.  It  can  bo  enforced  only  by  the  vendor  himself. 
Richards  v.  Learning,  supra;  Keith  v.  Horner,  32  111.  524; 
McLaurie  v.  Thomas,  39  111.  291;  Markoe  v.  Andras,  67  111. 
34:  Moshier  V.  Meek,  80  111.  79.  This  is  an  established  rule 
in  equity,  and  is  an  insuperable  obstacle  to  the  enforcement  of  a 
vendor's  lien  by  appellee.  Such  liens  are  secret;  often  pro- 
ductive of  gross  injustice  to  others  dealing  in  respect  of  the 
property  to  which  they  attach  ;  and  courts  of  equity  will  not 
extend  them  beyond  the  requirements  of  the  settled  principles 
of  equity. 

But  it  is  said  that,  the  deed  and  mortgage  being  part  of  the 
same  transaction,  the  title  would  not  vest  as  against  the  purchase 
money  ;  and  the  principle  so  often  announced  by  this  and  other 
courts,  that  in  such  case,  there  is  no  interregimm  between  the 
effective  operation  of  the  deed  and  mortgage  in  which  judgment 
liens  and  the  like  can  attach  as  against  the  mortgage  security,  is 
sought  to  be  invoked.  The  doctrine  can  have  no  application  to 
the  facts  of  this  case.  It  is  true,  as  so  often  held,  that  in  the 
case  stated,  the  mtiking  and  delivery  of  the  deed  and  mortgage, 
being  simultaneous  and  i)art  of  one  transaction,  are  to  be  con- 
strued as  one  act;  eo  inMante  upon  the  delivery  of  the  deed  the 
mortgage  becomes  effective,  and  the  title  passes  to  the  mortgagor, 
subject  to  the  lien  of  the  mortgage.  The  mortgage  attaches  to 
the  title  conveyed  in  its  transmission  from  the  vendor  to  the  ven- 
dee, and  obviousl}',  is  effective  in  arresting  the  passage  of  the 
title  so  far  only  as  it  reconveys  the  estate  to  the  original  vendor. 
Therefore,  if,  by  deed,  a  life  estate  is  conveyed  to  one,  and  the 
fee  to  another,  and,  as  part  of  the  same  transaction,  the  life- 
estate  is  mortgaged  by  the  grantee  thereof  to  the  grantor,  the 
mortgage  would  attach  to  the  life-estate,  and  the  life-tenant 
would  take  subject  to  the  lien,  and  the  fee  would  pass  unaffected 
by  the  mortgage. 

It  is  also  insisted  that  the  children  of  Mrs.  Lehndorf  are  mere 
volunteers,  who  paid  nothing,  and  therefore,  in  equity,  their 
interest  should  be  subject  to  the  payment  of  this  purchase  money. 
We  know  of  no  recognized  principle  of  equity  by  which  the  case 
can  be  affected  by  that  consideration.  If  it  be  conceded  they  paid 
nothing,  it  is  apparent  defendant  in  error  has  no  such  equity  as 
should  prevail  against  their  title.  It  is  not  enough  that  they  are 
not  purchasers  for  value  ;  the  party  questioning  their  title  must 
show  himself  legally  or  equitably  entitled  to  the  relief.  When 
defendant  in   error  purchased  the  notes  of  Humphrey  he  had 


36  ESTATES   TAIL. 

notice  by  the  record  of  the  state  of  the  title;  and  that  tlie  mort- 
gagor, in  the  mortgage  given  to  secure  them,  had  :i  life  estate 
only  in  the  lands  mortgaged.  He  nmst  be  presumed  to  have 
known  that  the  mortgage  conveyed,  subject  to  the  condition  of 
defeasance,  the  life-estate  of  Mrs.  Lehndorf  only  ;  and  also  that 
th(!  assignment  of  the  notes,  or  of  the  notes  and  mortgage,  could 
not  transfer  to  him  any  equitable  lien  Humphrey  might  have  hail 
upon  the  fee  in  the  land  for  the  unpaid  i)urchase  money.  Two 
thousand  dollars  of  the  consideration  was  paid  at  the  execution 
and  delivery  of  the  deed,  but  by  whom  does  not  appear.  If  the 
children  i)aid  nothing,  it  was  neither  unlawful  nor  immoral  for 
the  parents,  or  either  of  them,  to  provide  for  the  future  welfare 
of  their  offspring  by  purchasing  this  land,  and  having  the  fee 
deeded  to  them,  if  done  without  fraud  as  to  existing  creditors, 
and  with  the  knowledo:e  and  consent  of  their  grantor.  No  fraud 
is  alleged  or  shown,  nor  is  it  shown  that  the  mortgage  upon  the 
life-estate  of  Mrs.  Lehndorf  was  or  is  inadequate  security  for 
the  money  remaining  unpaid  to  the  defendant  in  error ;  but,  if  it 
was,  it  could  make  no  difference.  As  we  have  seen,  it  is  not 
purchase  money  in  his  hands,  in  any  sense  in  which  a  lien  can  be 
enforced  in  equity  otherwise  than  by  a  foreclosure  of  the  mort- 
gage upon  the  estate  and  interest  of  which  Mrs.  Lehndorf  was 
seised;  that  is,  her  life-estate  in  these  lands. 

It  appears  by  the  bill  that  the  deed  was  made  to  Mrs.  Lehn- 
dorf, and  her  heirs  by  her  present  husband,  etc.,  at  her  request. 
The  grantor  had  full  knowledge  of  the  grant,  and  took  back  a 
mortgage  to  secure  the  unpaid  purchase  money,  executed  by 
Mrs.  Lehndorf  and  her  husband  only.  Defendant  in  error 
purchased  the  notes  with  notice  of  the  facts,  as  disclosed  by  the 
record,  and,  if  he  must  lose  because  of  the  inadequacy  of  his 
security,  he  cannot  complain. 

The  decree  of  the  circuit  court  will  be  reversed,  and  the  cause 
remanded  for  further  proceedings  not  inconsistent  with  this 
opinion.     Reversed  and  remanded. 


Estate  Tail  Converted  by  Statute  into  an  Estate  for  Life  to 
Grantee,  and  Remainder  in  Fee  to  his  Heirs  of  the  Body. 

Wheart  v.  Cruser,  49  N.  J.  L.  475;  13  A.  36. 

In  the  trial  court,  in  rendering  judgment  for  the  plaintiff. 
Judge  Magie  said:  — 

"  The  cause  is  of  such  importance  as  to  justify  and  demand  a 
statement  of  the  views  of  the  court  on  the  legal  question  pre- 
sented.    That  question  respects  the  title  which  Matthias  Van 


STATUTORY    CHANGE    OF    ESTATES    TAIL.  37 

Dike  Cruser,  the  father  of  the  pUiintiff,  took  under  the  will  of 
Fiedeiick  Cruser,  deceased.  If  the  title  was  or  became  a  fee- 
simple,  then  the  defendant  must  succeed.  If  the  title,  under 
the  statute  of  13  Edw.  I.  (called  the  '  Statute  of  Entails  '),  was 
a  fee-tail,  then  the  plaintiff  has  a  right  to  recover.  The  solu- 
tion of  the  question  dcpiMids  on  the  construction  of  the  follow- 
ing clause  of  the  will  of  Frederick  Cruser,  deceased,  viz.:  'I 
give  and  devise  unto  my  sou,  Matthias  Van  Dike  Cruser,  his 
heirs  and  assigns  by  his  present  wife,  Sallie  Ann,  forever,  the 
farm,  etc. 

"  The  argument  of  delendant's  counsel  was  mainly  directed 
in  the  line  of  two  opinions  given  by  eminent  counsel  respecting 
the  true  construction  of  this  clause.  Both  these  opinions  have 
been  before  me  and  have  received,  as  they  deserve,  most  careful 
consideration.  The  opinion  of  Mr.  Bradley,  now  associate  justice 
of  the  Supreme  Court  of  the  United  States,  was  given  in  1866. 
lie  first  takes  the  position  that  the  clause  in  question  contains 
no  words  of  procreation,  nor  any  equivalent  words,  and  that  its 
words  do  not  necessarily  imply  the  descendants  of  the  devisee, 
for  he  says,  '  the  heirs  of  M.  V.  D.  C.  by  his  present  wife, 
Sally  Ann,  must  be  descended  from  her,  but  need  not  necessa- 
rily be  descended  from  him;  for  if  he  should  die  first,  and  his 
wite  should  marry  his  next  cousin,  and  have  issue,  this  issue  might 
become  the  collateral  heirs  of  M.'  He  then  likens  the  estate 
devised  to  a  qualified  fee,  which  he  describes  as  being  in  the 
language  of  IMr.  Preston,  an  interest  given  in  its  first  limitation 
to  a  man  and  to  certain  of  his  heirs,  and  not  extended  to  all 
of  them  generally,  nor  confined  to  the  issue  of  his  body.  He 
then  concludes  that  the  limitation  of  this  clause,  restricting  the 
descent  to  such  of  the  heirs  of  M.  V.  D.  C.  as  should  be  descend- 
ants of  Sally  Ann,  his  wife,  creates  a  source  of  descent  different 
from  that  prescril)ed  by  our  laws,  and  so  is  repugnant  to  the 
estate  granted  to  M.  V.  D.  C.,and  void.  This  conclusion  seems 
to  in-Jicate  that  the  estate  which  M.  V.  D.  C.  took  was  a  fee- 
simple.  The  foundation  of  this  conclusion  is  evidently  the 
alleged  lack  of  words  of  procreation,  or  words  of  equivalent 
meaning.  His  contention  is  that  the  words,  '  heirs  of  M.  V.  D. 
C.  by  his  present  wife,  Sally  Ann,'  do  not  necessarily  import  the 
issue  of  M.  V.  D.  C.  If  this  premise  is  incorrect,  the  conclusion 
mu>t  be  rejected.  I  feel  constrained  to  legard  the  woi'ds  as  en- 
tirely equivalent  to  '  heirs  of  the  body  of  M.  V.  D.  C.  by  his  pres- 
ent wife,  Sally  Ann.'  This  instrument  to  be  construed  is  a  will. 
What 'are  we  to  ascertain  is  the  intent  of  the  testator?  No  one 
who  reads  the  clause  will  doubt  that  his  intent  was  to  limit  the 
estate  to   the  issue  of  M.  V.  D.  C.  by  Sally  Ann.     The  books 


38  ESTATES   TAIL. 

are  full  of  illustrations  of  precisely  similar  inferences  of  intent, 
drawn  from  the  use  of  similar  language.  Thus,  in  Den  v.  Cox, 
0  N.  J.  Law,  10,  the  phrase,  '  his  lawfully  begotten  heir,'  was 
held  to  create  an  estate  tail,  and  to  be  equivalent  to  '  lawfully 
begotten  heir  of  his  body.'  Yet  the  words  did  not  necessarily 
import  the  issue  of  the  devisee,  and  would  have  been  entirely 
satisfied  by  a  descent  to  any  heir  lawfully  begotten,  though  not 
of  his  issue.  The  words  '  heirs  male,'  in  a  devise,  have  always 
been  held  to  import  heirs  of  the  body ;  and  yet  they  would  be 
entirely  satisfied  by  any  male  heirs,  lineal  or  collateral.  Den  v. 
Fogg,  3  N.  J.  Law,  819.  These  illustrations  might  be  indefi- 
nitely multiplied.  The  present  case  is  not  without  precedent, 
and  the  view  I  have  taken  is  not  without  the  support  of 
authority.  In  Vernon  v.  Wright,  7  H.  L.  Cas.  49,  a  devise  to 
♦  the  right  heirs  of  my  grandfather,  by  Mary,  his  second  wife, 
forever,'  was  held  to  create  an  estate  tail.  The  words  were  said 
to  comprehend  words  of  procreation,  and  to  be  equivalent  to 
heirs  of  the  body  of  the  grandfather,  begotten  on  the  body  of  the 
wife  named.  In  Sommers  v.  Pierson,  16  N.  J.  Lavv,  181,  a  de- 
vise to  J.  S.  and  *  to  his  heirs  by  his  present  wife,  Anne,'  was 
held  to  create  an  estate  tail.  The  opinion  was  by  Ford,  J.,  and 
concurred  in  by  Hornblower,  C.  J.  The  judgment  of  the 
Supreme  Court  was  afterwards  reversed  by  the  court  of  errors; 
but  no  opinion  seems  to  have  been  delivered,  and  the  reversal 
was  in  1841.  It  is  not  necessary  to  infer  that  the  reversal  went 
on  the  ground  that  the  construction  given  to  this  clause  by  the 
Supreme  Court  was  erroneous.  There  was  a  subsequent  clause 
in  the  will  then  under  consideration  which  provided  that  the 
lands  devised  were,  after  the  death  of  the  widow,  to  whom  they 
were  given  for  life,  to  *  cede  to  J.  S.,  his  heirs  and  assigns,  to 
all  intents  and  purposes.'  It  was  contended  in  the  Supreme 
Court  that  this  clause  controlled  and  passed  a  fee-simple.  We 
may  fairly  presume  the  same  contention  was  made  in  the  court 
of  errors,  and  the  reversal  was  probably  on  that  ground.  The 
case,  therefore,  is  not  without  weight.  Upon  these  grounds,  I 
think  the  words  of  this  clause  are  to  be  taken  as  including  the 
idea  of  procreation,  and  as  meaning  '  heirs  of  the  body  '  of  M. 
V.  D.  C.  by  his  wife,  Sally  Ann. 

"The  other  opinion  was  by  A.  O.  Sabriskie,  afterwards 
chancellor.  His  conclusion  is  that  M.  V.  D.  C.  took  au  estate 
in  fee-simple.  This  conclusion  is  upon  the  force  of  the 
word  'assigns,'  which,  he  insists,  indicates  a  clear  intention  to 
give  to  M.  V.  D.  C.  a  power  to  sell.  The  remaining  part  of  the 
devise,  he  thinks,  would  have  its  due  effect  if  held  to  mean  that 
if  M.  V.  D.  C.  should  die  without  having  sold  the  farm,  his 


STATUTORY    CHANGE  OF    ESTATES    TAIL.  39 

heirs  by  his  wife,  Sally  Ann,  would  take  as  purchasers.  He 
admits  that,  unless  that  construction  be  given,  the  chiut^e  will 
come  literally  within  the  eleventh  section  of  the  descent  act 
which  provides  for  the  disposition  of  estates  which  would  be 
estates  tail  under  the  statute  of  entails.  But  he  su<:gests  that 
an  estate  tail  special  is  not  within  that  section,  because,  as  he 
well  observes,  a  literal  application  of  the  sections  to  such  estates 
will  invariably  thwart  the  will  of  the  testator.  This  sugges- 
tion need  not  be  considered,  because,  in  Zabriskie  v.  Wood,  23 
N.  J,  Eq.  541,  the  court  of  errors  expressly  decided  that  the 
eleventh  section  did  apply  to  all  estates  tail,  whether  general  or 
special.  The  force  attributed  by  Mr.  Zalniskie  to  the  word 
'  assigns,'  in  this  clause,  is,  in  my  judgment,  excessive  and 
inappropriate.  In  Den  v.  Wortendyke,  7  N.  J.  Law,  363,  the 
question  was  whether  an  estate  in  fee  or  in  tail  passed  under  a 
clause  of  a  will,  and  the  same  contention  was  made.  Chief 
Justice  Kinsey  uses  the  following  language  :  '  In  the  outset,  I 
will  remark  that  little  or  no  importance  is  to  be  attached  to 
the  use  of  the  word  "assigns,"  in  this  case;  a  circumstance 
upon  which  a  considerable  part  of  the  argument  was  founded, 
lam  not  aware  of  a  single  case  wherein,  a  certain  interest  hav- 
ing been  given  in  a  will,  this  word  has  been  held  to  enlarge,  or 
in  any  manner  to  affect,  this  interest.  Every  interest  recog- 
nized by  the  law  unless  under  particular  circumstances,  is  the 
object  of  an  assignment.  It  belongs  essentially  to  every  species 
of  interest  or  property;  and  the  introduction  of  the  term  is, 
therefore,  in  every  case,  superfluous  and  inoperative  in  a  con- 
veyance of  property.  The  first  section  of  Littleton  shows  that 
the  word  has  no  enlarging  power  in  a  conveyance,  and 
Coke  *  *  *  shows  that  it  is  the  same  in  a  case  of  a  will. 
The  argument,  therefore,  resting  on  the  basis,  is  entitled  to  no 
consideration.'  In  the  section  referred  to  by  the  learned  chief 
justice,  Littleton  declares  that  a  purchase  by  the  words,  '  to  have 
and  to  hold  to  him  and  his  assigns  forever,'  would  only  pass  an 
estate  for  life.  Coke,  in  his  Commentary,  says  that  a  devise 
'  to  him  and  to  his  assigns  forever '  will  pass  a  fee-simple  by  the 
intent  of  the  devisor.  But  it  is  plain  that  this  intent  is  drawn, 
not  from  the  use  of  the  word  *  assigns,'  but  the  use  of  the 
word  *  forever;  '  for  he  adds  that  under  a  devise  '  to  one  and 
his  assigns,'  without  saying  '  forever,'  the  devisee  hath  but  an 
estate  for  life.  Co.  Litt.  96.  In  Lutkins  v.  Zabriskie,  21  N. 
J.  Law,  337,  on  a  devise  to  A.,  and  to  her  heirs  lawfidly  from 
her  body  begotten,  and  assigns,  forever,  it  was  contended  that 
A.  took  a  fee-simple,  and  among  other  reasons,  because  of  an 
intention  to   be  inferred  from  the  use  of  the   word    '  assi<rns.' 


40  ESTATES   TAIL. 

Chief  Justice  Hornblower  held  Ihat  the  word  '  assigns '  had 
never  been  considered  sufficient  to  control  previous  words 
of  limitation.  Upon  these  cases  it  seems  to  me  the  word 
relied  on  has  never  been  api)lied  to  enlar^^e  an  estate  under 
the  circumstances  such  as  appear  in  this  case.  The  force 
attributed  to  the  word  is  inappropriate,  because,  in  any  event, 
the  estate  taken  by  M.  V.  D.  C.  was  vendible  and  assign- 
able. Under  such  circumstances,  there  is  no  inference  to  be 
drawn  except  of  an  intent  to  pass  a  vendible  and  assignable 
estate. 

*'  It  was  contended  on  the  argument  that  the  word  '  forever,' 
in  this  clause,  tended  to  the  same  construction  reached  by  Mr. 
Zabriskie.  But,  although  this  word  often  o|)erates  to  indicate 
an  intent  to  create  a  fee  simple,  yet  it  will  not  operate  to  create 
or  impede  the  creation  of  an  estate  tail.  Such  was  the  view  of 
Chief  Justice  Ewing  in  Den  v.  Cox,  9  N.  J.  Law,  10,  an<l  the 
cases  there  cited,  and  many  others  sustain  that  view.  In  Vernon 
V.  Wright,  tibi  supra,  Crowder,  J.,  expresses  the  same  view,  and 
says  the  word  would  not  enlarge  the  hmitation  of  the  estate  tail, 
but  only  import  its  continued  duration.  The  result  is  that,  in 
my  judgment,  the  plain  intent  of  testator  was  to  create  an 
estate  which,  under  the  statute  of  13  Edw.  I.,  commonly  called 
the  '  Statute  of  Entails,'  would  have  been  an  estate  in  special 
tail.  Upon  the  authority  of  Zabriskie  v.  Wood,  ubi  supra,  that 
estate  fell  within  the  provisions  of  section  11  of  the  descent  act, 
and  became  an  estate  for  life  in  M.  V.  D.  C,  the  devisee,  with 
remainder  to  his  childien  in  fee-simple.  See  also  Redstrake  v. 
Townsend,  39  N.  J.  Law,  372. 

*'  It  was  susfgcsted  on  the  hearins:  that  there  migrht  be  a 
question,  under  section  11,  as  to  the  amount  of  estate  to  which 
plaintiff  would  be  entitled.  He  is  one  of  seven  children  of 
M.  V.  D.  C.  by  his  wife  Sally  Ann.  M.  V.  D.  C.  had 
a  child  by  a  previous  wife.  If  the  last-named  child  obtains 
an  interest  under  section  11,  it.  is  plain  that  the  intention 
of  the  testator  is  not  regarded.  But  the  question  is  not 
before  me,  because  plaintiff  only  claims  one-eighth  of  the 
land.  If  before  me,  the  case  of  Zabriskie  v.  Wood,  iibi  supra, 
settles  it,  for  in  that  case  the  statute  was  so  construed  as 
to  cast  the  devised  estate  upon  a  child  to  whom  it  was  the 
evident  intent  of  the  testator  that  the  estate  should  not 
pass.  I  am  therefore  constrained  to  find  for  the  plaintiff,  and 
that  he  is  entitled  to  judgment  for  the  lands  claimed,  etc.,  and 
his  costs  of  suit,"  etc. 

A  writ  of  error  was  brought  to  remove  the  judgment  and 
proceedings  to  this  court. 


CONDITION    AGAINST   ALIENATION   OF    LIFE   ESTATE.  41 

Per  Curiam.  The  judgment  in  this  case  should  be  affirmed, 
for  the  reason  given  by  the  court  below.  Unanimously 
affirmed. 


CHAPTER    V. 

ESTATES    FOR     LIFE. 


Hayward  v.  Kiuney,  84  Mich.  591;  49  N.  W.  170. 

Jeuks  V.  Horton,  9G  Mich.  13;  55  N.  W.  372. 
Duucombe  v.  Felt,  81  Mich.  332;  45  N.  W.  1004. 

Condition  Against  Alienation  of  Life  Estate. 

Hayward  v.  Kinney,  84  Mich.  591;  48  N.  W.  170. 

Champlin,  C-  J.  The  bill  in  this  case  was  filed  to  foreclose  a 
mortgage  executed  by  Francis  H.  Strong  and  Georgia  A.  Strong, 
his  wife,  to  Israel  Hall  on  the  lOth  day  of  November,  1866,  to 
secure  to  the  said  Israel  Hall  the  payment  of  the  sum  of  $15  000 
mentioned  in  a  promissory  note  of  even  date  with  the  mortgage, 
with  annual  interest  thereon.  This  mortgage  was  duly  acknowl- 
edged and  recorded  in  the  office  of  the  register  of  deeds  for  the 
county  of  Lenawee  on  the  16th  day  of  November,  1866.  The 
mortgage  purported  to  sell  and  convey  unto  Israel  Hall,  as  the 
party  of  the  second  part,  the  S.  W.  ^  of  the  S.  W.  ^  of  section 
21,  township  8  S.,  range  2  E. ,  Michigan.  The  bill  of  complaint 
sets  forth  that  on  or  al)()ut  the  23rd  day  of  February,  1882,  Israel 
Hall  assigned  said  mortgage  to  the  complainant  in  his  suit  for 
the  use  and  benefit  of  Zackra  E.  Strong  and  Olive  May  Strong, 
children  of  the  said  Georgia  A.  Strong,  one  of  the  mortgagors 
mentioned  in  said  mortgage,  together  with  the  note  and  all 
moneys  then  due  and  the  interest  that  might  hereafter  grow  due 
on  said  note  and  mortgage.  This  assignment  was  duly  acknowl- 
edged on  the  23d  day  of  February,  1882,  and  was  recorded  on 
the  25th  of  that  month.  The  bill  further  slates  that  on  the 
18th  day  of  June,  1866,  the  said  Francis  H.  Strong,  one  of  the 
parties  of  the  first  part  in  the  said  indenture  of  mortgage,  and 
Joseph  T.  Strong,  Chester  W.  Strong,  and  Gertrude  J.  Cole  were 
the  owners  in  fee  and  tenants  in  common  of  the  said  premises  ; 
and  on  the  date  last  mentioned  Joseph  T.  Strong  and  his  wife, 
Chester  W.  Strong,  and  Gertrude  J.  Cole,  for  the  consideration 
of  $1,000,  executed  and  delivered  to  Francis  H.  Strong  a  certain 
quitclaim  deed,  thereby  granting  and  selling  unto  the  said 
Francis  H.  Strong  all  their  right,  title,  and  interest  in  and  to  the 
said  premises,  to  have  and  to  hold  the  said  premises  with  the 


42  ESTATES    FOR    LIFE. 

appurtenances  unto  the  said  Francis  H.  Strong,  the  party  of  the 
second  part  in  said  deed  mentioned,  during  his  natural  lifetime, 
and  his  heirs  and  assigns  of  his  heirs,  forever,  but  not  to  be 
conveyed  during  the  lifetime  of  the  said  Francis  H.  Strong; 
that  this  deed  was  duly  acknowledged  on  the  LSlh  day  of  June, 
18t)(),  by  the  grantors,  and  was  recorded  on  the  2d  day  of  July, 
1866,  in  the  office  of  the  register  of  deeds  of  said  county  of 
Lenawee.  The  complainant  further  states  that  the  said  inden- 
ture of  mortgage  before  mentioned,  executed  b}'^  the  said  Francis 
H.  Strong  and  Georgia  A.  Strong,  his  wife,  to  the  said  Israel 
Hall,  was  given  upon  and  intended  to  give  all  the  right,  title, 
and  interest  of  the  said  Francis  H.  Strong  and  Georgia  A. 
Strong  in  and  to  the  said  premises  described  therein  ;  that  said 
Zackra  E.  and  Olive  May  Strong  in  the  said  assignment  of  mort- 
gage mentioned  are  the  sole  and  only  issue  of  the  said  Francis 
H.  Strong  and  Georgia  E.  Strong;  that  both  are  living,  and  are 
under  the  age  of  21 ;  that  about  the  1st  day  of  January,  1878, 
said  Francis  A.  Strong  left  and  abandoned  his  children  without 
providing  them  any  means  whatever  for  their  education,  support, 
or  maintenance,  and  has  ever  since  persisted  in  so  deserting 
them,  and  wholly  neglected  and  refused  to  provide  anything 
whatever  for  them;  that  the  said  mortgage  was  assigned  to  the 
complainant  by  the  said  Israel  Hall  f(jr  the  use  and  benefit 
of  said  children  in  order  that  the  complainant  might  collect  the 
same  and  apply  the  proceeds  thereof  for  their  use  and  benefit  ; 
and  that  the  same  was  and  is  the  only  means  from  which  sup- 
port can  be  provided  for  them.  The  complaint  further  sets 
out  that  this  mortgage  so  assigned  to  him  contained  no  power 
of  sale  as  required  by  the  laws  of  the  State,  to  authorize  its  fore- 
closure by  advertisement,  and  that  the  complainant,  being 
entirely  mistaken  and  misled  by  ignorance  of  this  fact,  on  the 
20th  day  of  May,  1882,  commenced  proceedings  to  foreclose  the 
mortgage  l)y  advertisement,  prosecuted  the  same  to  sale,  and 
became  the  purchaser  thereat,  and  received  the  sheriff's  deed 
therefor ;  that  the  deed  so  received  was  acknowledged  on  the 
28th  day  of  August,  1882,  and  recorded  on  the  29th  day  of 
August  in  the  office  of  the  register  of  deeds  of  Lenawee  County; 
that  he  supposed  that  the  proceedings  to  foreclose  said  mort- 
gage by  advertisement  were  regular,  valid,  and  binding  in  law. 
Ho  also  states  that  on  the  7th  day  of  December,  1883,  said 
Georgia  A.  Strong,  by  the  name  of  Georgia  A.  Hay  ward  (she 
having  in  the  meantime  married  the  complainant),  in  order  to 
protect  her  children,  as  the  beneficiaries  under  said  mortgage, 
executed  a  quitclaim  deed  of  the  premises  to  the  complainant  in 
trust  for  the  use  and  benefit  of  said  children;  that  said  deed  was 


CONDITION   AGAINST  ALIENATION    OP    LIFE    ESTATE.  43 

duly  acknowledged,  and  was  afterwards  recorded  on  the  14th 
day  of  November,  1884,  in  the  office  of  the  register  of  deeds  of 
Lenawee  County.  The  bill  also  sets  forth  that  previous  to  the 
execution  of  said  deed  by  Georgia  A.  Hayward,  she  had  ac- 
quired a  tax-title  upon  said  premises  by  deed  from  Chtnks  M. 
Croswell,  who  had  ol)tained  the  auditor-general's  deed  for  the 
taxes  of  1867;  but  it  further  states  that  such  deed,  on  account 
of  errors  in  the  assessment  of  said  taxes  of  18G7,  was  abso- 
lutely void,  and  that  no  title  whatever  in  and  to  said  lands  by 
virtue  of  said  deed  vested  in  the  said  Georgia  A.  Strong,  now 
Hayward.  He  further  states  that  the  mortgaged  premises  had 
not  been  ledeemcd  from  the  sale,  and  he,  still  bemg  mistaken 
and  utterly  ignorant  of  the  fact  that  the  mortgage  contained  no 
power  of  sale,  and  honestly  believing  the  foreclosure  proceed- 
ings valid,  brought  an  ejectment  to  obtain  possession  of  the 
land  in  the  circuit  court  for  the  county  of  Lenawee  against  the 
defendant  Amos  A.  Kinney  and  Andrew  Church  and  Charles 
Church,  who  were  then  in  the  possession  of  the  preniises, 
holding  the  same  adversely  to  the  complainant  under  claim  of 
title;  that  issue  was  framed  in  said  suit  and  recovery  had  in 
favor  of  the  plaintiff  therein  ;  that  before  the  time  fixed  by  the 
statute  had  expired  a  new  trial  of  the  cause  was  obtained  by  the 
defendants,  and  he,  having  then  discovered  the  fact  that  the 
mortgage  did  not  contain  a  power  of  sale,  ordered  the 
ejectment  suit  discontinued.  The  court  refused  to  do  so,  for 
the  reason  that  the  beneficiaries  of  the  mortgage  appeared 
by  another  attorney,  and  asked  leave  to  prosecute  the  suit, 
and  that  the  suit  resulted  in  a  verdict  and  judgment  for 
the  complainant;  that  for  some  reason  which  the  complainant 
does  not  explain,  the  suit  was  finally  discontinued  before 
the  commencement  of  this  suit  to  foreclose  the  mortgage.  The 
complainant  further  expressly  charges  that  up  to  the  time  he 
withdrew  from  said  cau-^e  he  prosecuted  said  ejectment  suit  in 
utter  ignorance  of  the  mistake  as  to  his  title  to  the  mortorao-ed 
premises  for  the  recovery  of  which  said  ejectment  suit  was 
instituted,  and  that  he  honestly  believed  that  his  title  to  said 
mortgaged  premises  was  perfect  to  the  extent  of  the  right,  title, 
and  interest  of  said  Francis  H.  Stroncr  and  Georgia  A.  Strono- 
therein,  and  that,  had  he  not  been  misled  in  respect  to  said  title, 
he  would  have  foreclosed  said  mortgage  in  equity  before  the 
expiration  of  15  yeais  from  the  time  the  same  became  due.  He 
further  states  that  Francis  H.  Strong,  one  of  the  mortgagors,  is 
not  a  resident  of  this  State,  and  has  not  been  for  11  years  last 
past,  and  that  he  is  credibly  informed,  believes  and  charges  that 
the    said   Strong  is  financially  irresponsible  and  has  been  ever 


44  ESTATES    FOR    LIFE. 

since  said  note  became  duo,  and  that  the  amount  due  to  the  com- 
phiinant  upon  said  note  and  mortgage,  as  trustee  of  said  minor 
children,  will  be  wholly  lost  as  to  said  children  unless  the  same 
is  realized  by  the  sale  of  the  mortgaged  premises  by  foreclosure. 
He  further  states  that  the  note  which  was  delivered  at  the  time 
the  mortgage  was  executed  was  payable  on  the  10th  day  of 
November,  1869,  and  that  there  is  now  duo  and  unpaid  upon  said 
note  and  mortgage  the  sum  of  $o,8(iO,  and  that  no  proceedings 
at  law  have  been  had  to  recover  the  debt  or  any  part  thereof, 
except  as  before  stated.  He  further  states  that  from  an  exami- 
nation of  the  records  of  deeds  and  mortgages  in  the  otlice  of  the 
register  of  deeds  in  the  county  of  Lonawee  it  appears  that  Amos 
A.  Kinney  and  Lucinda  Kinney  have,  and  claim  to  have,  rights 
and  interests  in  the  premises  described  in  said  indenture  of  mort- 
gage, or  in  some  part  or  parts  thereof,  as  subsequent  purchasers, 
incumbrancers  or  otherwise.  He  prays  for  a  foreclosure  of  the 
mortgage  in  the  usual  form. 

The  defendants  Amos  A.  Kinney  and  Lucinda  Kinney  demur 
to  the  bill  for  want  of  equity,  and  for  the  reason  that  the  bill 
had  not  been  exhibited  within  fifteen  years  from  the  time  the 
note  and  mortgage  became  due  and  payable,  which  demurrer  was 
overruled,  and  thereupon  they  answered,  admitting  the  execution 
and  delivery  of  said  note  and  mortgage  to  Israel  Hall  and  the 
execution,  acknowledgment,  and  recording  the  assignment  as 
stated  in  the  bill ;  admitting  that  the  whole  amount  of  said  note, 
according  to  its  terms,  is  due  and  unpaid;  admitting  also  that 
proceedings  wore  had  to  foreclose  the  mortgage  by  advertise- 
ment, as  stated  in  the  bill,  and  that  such  proceedings  were  void 
for  the  reasons  stated  in  the  bill.  They  admit  also  the  com- 
mencement of  the  suit  in  ejectment,  and  the  proceedings  thereon, 
as  stated  in  the  bill,  and  the  discontinuance  of  the  suit.  They 
admit  that  they  have,  and  claim  to  have,  rights  and  interests  in 
the  premises,  and  that  such  rights  and  interests  were  acquired 
by  them  subsequent  to  the  date  of  said  mortgage.  They  aver 
that  the  defendant  Amos  A.  Kinney  has  acquired  all  the  right, 
title,  and  interest  of  the  said  Francis  H.  Strong  under  and  by 
virtue  of  the  sheriff's  sale  and  deed  under  the  judgment  executed 
against  said  Francis  in  the  suit  in  the  circuit  court  for  the  county 
of  Lenawee;  and  also  several  tax-titles  under  deeds  made  by  the 
auditor-general  of  said  State  on  sales  of  said  premises  made 
pursuant  to  law  for  delinquent  taxes,  and  that  the  defendant 
Lucinda  Kinney  has  also  purchased  the  premises  under  a  tax- 
sale  made  by  the  auditor-general  of  the  State  for  delinquent 
taxes  pursuant  to  law,  and  received  a  deed  therefor.  The 
answer  is  also  coupled  with  a  demurrer  based  upon  the  ground 


CONDITION   AGAINST   ALIENATION    Of    LIFE    ESTATE.  45 

that  llio  bill  was  not  filed  wilhiii  15  years  after  the  mortgage 
})ecame  due  and  payable,  and  no  p.iyinent  had  been  made 
thereon.  A  general  and  special  replication  was  filed  to  the 
answer  of  Atnos  A.  and  Lucinda  Kinney,  the  defendant  Georgia 
A.  Hayward  a<in)ilting  the  execution  of  tlie  mortgage  by  herself 
and  Francis  H.  Strong  as  charged  in  said  bill  of  complaint  and 
the  assignment  thereof,  and  that  no  part  of  the  mortgage  has 
been  paid;  admits  that  the  sum  stated  in  the  bill  is  now  due  as 
therein  charged;  and  also  admitting  all  other  material  facts 
charged  in  said  bill.  Proofs  were  taken  in  open  court  before 
the  Hon.  P.  Loveridge,  from  which  it  appeared  that  Rali)h  P. 
Strong  was  at  the  time  of  his  death  the  owner  of  the  premises; 
that  he  died  in  the  fall  of  1)SG4,  leaving  a-^  his  heirs  at  law  four 
child len,  namely,  Joseph  T.,  Francis  H.,  Chester  and  Gertrude 
Strong,  who  was  married  to  a  man  by  the  name  of  Cole.  It  was 
also  proven  that  the  widow  of  Ralph  P.  Strong  is  dead.  The 
defendants  Amos  A.  and  Lucinda  Kinney  introduced  in  evidence 
several  tax-deeds  of  the  premises,  against  the  objection  of  the 
complainant's  solicitor,  and  also  the  proceedings  under  the 
attachment  suit  set  up  in  his  answer.  The  circuit  court  entered 
a  decree  in  favor  of  the  complainant  for  the  foreclosure  and  sale 
of  the  mortgaged  premises. 

Since  the  decree  of  the  court  below,  the  decision  in  the  case 
of  McKesson  v.  Davenport  (Mich.),  reported  in  47  N.  W.  Rep., 
at  page  201,  having  been  brought  to  the  attention  of  the  solicitor 
for  the  defendant  he  waives  the  position  taken  by  him  that  the 
statute  referred  to  in  that  decision  applies  to  the  case  under 
consideration. 

He  also  insists,  as  does  the  solicitor  for  the  complainant,  that 
adverse  claims  and  titles  to  land  cannot  be  tried  in  a  suit  to  fore- 
close a  mortgage,  but  the  defendant's  solicitor  insists  that  under 
the  general  rules  of  equity  the  mortgage  has  become  stale,  and 
the  statute  of  limitations  can  be  a[)plied  to  it.  ^We  do  not  think 
that  this  position  is  tenable.  The  complainant  shows  sufEcient 
excuse  for  delay  in  filing  this  bill  for  the  foreclosure  of  the 
mortgage. 

Defendant's  solicitor  further  claims  that  the  clause  in  the  deed 
of  the  heirs  to  Francis  H.  Strong,  reading  as  follows:  ♦'  But  not 
to  bo  conveyed  during  the  lifetime  of  said  Francis  H.  Strong," 
operated  as  a  restraint  upon  the  right  of  alienation  of  Francis  H. 
Strong,  and  therefore  he  could  not  give  a  valid  mortgage  upon  the 
three-fourths  of  the  premises  conveyed  to  him  by  that  deed,  he 
only  having  a  life  estate  in  three-fourths  of  the  premises,  and  his 
right  to  convey  being  prohibited.  These  words,  if  eifectual  for 
any  purpose,  operate  and  were  evidently  intended  as  a  condi- 


46  ESTATES  FOR   LIFE. 

tlon  subsequent.  The  doed  created  a  life-estate  merely  in 
thri'e-foiirlhs  of  the  premises,  and  the  insertion  of  the  words 
served  to  make  that  nn  express  condition  whicli  at  the  common 
law  was  implied  in  every  estate  for  life  or  years.  2  Bl.  Comm. 
1.53.  Such  condition,  however,  defeats  the  estate  to  which  it  is 
annexed  oidy  at  the  election  of  him  who  has  tiie  right  to  enforce 
it  No  one  entitled  to  enforce  the  condition  has  sought  to  defeat 
the  estate  granted  to  Nathan  Strong,  and  until  this  is  done  the 
niortoao-o  has  a.  right  to  enforce  his  security  to  the  same  extent 
as  if  the  condition  was  not  contained  in  the  deed. 

The  defendant,  Amos  A.  Kinney,  claims  as  a  subsequent 
purchaser  under  an  execution  sale,  but  this  is  subject  to  the 
mortgagee  of  the  complainant,  and  he  was  properly  made  a  party 
defendant.  The  complainant  failed  to  show  that  Lucinda  M. 
Kinney  had  any  interest  in  the  premises  which  was  subject  to 
his  mortgage.  The  record  discloses  that  she  had  a  tax-title  upon 
the  i)remises  which  the  complainant  must  have  known,  could  not 
be  litigated  in  this  suit,  and  there  was  therefore  no  reason  for 
making  her  a  party.  The  bill  will  be  dismissed,  with  costs,  as 
to  her,  the  decree  of  the  court  will  be  affirmed,  with  costs,  as  to 
the  other  defendant,  and  no  writ  of  assistance  will  be  awarded 
to  put  Amos  A.  Kinney  out  of  possession  of  the  premises 
which  he  claims  to  hold  by  a  paramount  title.  The  other  justices 
concurred. 


Liability  of  Life-Tenant  for  Taxes. 

Jenks  V.  Horton,  96  Mich.  13;  55  N.  W.  372. 

Bill  by  William  L.  Jenks  against  Rebecca  Horton  to  establish 
a  lien  for  taxes  paid  by  complainant  on  certain  premises,  and  to 
compel  the  payment  of  other  taxes  assessed  on  said  premises. 
Decree  for  complainant.  Defendant  appeals.  Modified  and 
aflSrmed. 

The  agreed  facts  in  this  case  are  as  follows:  (1)  Prior  to 
May  8,  1869,  the  ownership  of  the  land  was  in  Rebecca  Horton, 
a  widow  of  Nelson  D.  Horton,  deceased,  and  Carlos  D.  Horton 
and  Mary  E.  Beard,  the  children  and  heirs  at  law  of  Nelson  D. 
Horton,  and  that  the  property  was  the  homestead  of  Nelson  D. 
Horton.  (2)  May  8,  1869,  the  said  Carlos  D.  Horton  and 
Mary  E.  Beard  gave  to  Rebecca  Horton  a  life  lease  of  said 
premises.  (3)  By  sundry  and  mesne  conveyances  the  title  of 
Carlos  D.  Horton  was  conveyed  to  Frances  S.  Farrand.  (4) 
May  22,  1884,  Frances  S.  Farrand  conveyed  the  interest 
acquired  from  Carlos  D.  Horton  to  Etta  M.  Beard,  and  upon 


LIABILITY   OF    LIFE-TENANT    FOR    TAXES.  47 

the  same  day  tlio  same  Etta  M.  Board  jrave  to  B.  C.  Farraiid  a 
mortga<^e  on  the  entire  reversion  for  $918  90,  to  .secure  the 
purchase  price  of  the  interest  conveyed  to  her ;  that  said  mort- 
g.age  contained  a  covenant  on  the  part  <»f  the  mortgagor  to  pay 
all  taxes  assessed  upon  said  promises.  (5)  Said  inortgngo  w.is 
assigned  June  1(5,  1884,  to  George  S.Barrett  and  hy  liim  fore- 
closed for  the  interest  accrued  and  unpaid;  the  sale  taking 
place  February  27,  1880,  and  a  sheriff's  deed  being  made  to 
George  S.  B;irrett.  Redemption  expired.  (6)  May  7,  1887, 
the  said  George  S.  Bai'relt  conveyed,  by  ordinary  quitclaim,  the 
said  premises  to  B.  C.  Farrand  and  VV".  L.  Jenks,  and  on  the 
18th  day  of  Septeml)er,  1889,  the  said  Barrett  executed  in  person 
a  conveyance  by  quitclaim,  in  usual  form,  of  the  said  premises 
to  the  same  grantees,  and  the  same  Farrand  conveyed  by  ordi- 
nary warranty  deed,  except  as  against  existing  tax  claims  and 
mortgages,  his  interest  in  the  said  premises  to  Sheldon  A.Wood, 
on  September  23,  1889,  and  after  the  filing  of  the  original  bill  in 
this  case  the  said  Sheldon  A.  Wood  conveyed,  without  covenants, 
his  interest  in  the  said  premises  to  complainant.  (  7  )  Septeml)er 
20,  1886,  the  said  George  S.  Barrett  redeemed  the  said  premises 
from  the  sale  made  for  unpaid  taxes  of  1882  and  1883,  pay- 
ing therefor,  for  the  tuxes  of  1882,  the  sum  of  $84.90,  and, 
for  the  ta,xe8  of  1883,  $71.14.  (8)  Septem.ber  27,  1887,  the 
said  B.  C.  Farrand  and  W.  L.  Jenks  redeemed  for  the  taxes  of 
1884,  paying  therefor  $62.94;  September  25,  1888,  the  said 
parties  redeemed  for  the  taxes  of  1885,  paying  therefor  $68.70  ; 
September  27,  1889,  the  said  Jenks  and  Wood  redeemed  for 
the  taxes  of  1886,  paying  therefor  $71.56  ;  and  all  the  rights  of 
said  Barrett  for  taxes  paid  were  transferred  to  said  Farrand  and 
Jenks  and  the  rights  of  said  Farrand  and  Jenks  transferred  to 
Jenks  and  Wood,  and  the  rights  of  said  Wood  transferred  to 
said  complainant  by  assignment.  (9)  At  the  time  of  filing  the 
original  bill  there  were  the  ordinary  city.  State  and  county 
taxes  assessed  upon  said  premises  for  the  years  of  1887,  1888, 
and  1889,  in  all  amounting  to  upwards  of  $161,  unpaid. 
(10)  Said  Rebecca  Horton  has  occupied  a  portion  of  the 
premises  continuously  since  the  lifelease  given  to  her  in  May, 
1869,  and  has  not  paid  any  taxes  assessed  thereon,  beginning 
with  the  year  1882.  (11)  From  September  1,  1885,  to  Janu- 
ary 20,  1890,  Etta  M.  Beard  and  her  family  occupied  the  prop- 
erty described  in  the  bill  as  a  home  ;  Mrs.  Horton  also  living 
there  during  the  same  time.  The  court  entered  a  decree  that 
the  complainant  had  a  lien  upon  the  life  estate  of  the  defendant 
for  the  taxes  of  1882  to  1886,  inclusive,  which  had  been  paid 
by  the  complainant  and  his  assignors,  and  for  the  unpaid  taxes 


48  ESTATES    FOR   LIFE. 

of  1887,  1888,  1889:  that  she  p:iy  the  amount  of  such  taxes 
within  GO  days  after  service  upon  her  of  a  certified  copy 
of  the  decree,  and  that,  in  default  thereof,  her  interest  be  sold 
by  the  sheriff  of  the  county,  in  the  manner  provided 
for  the  sale  of  real  estate  on  execution  for  tl'e  taxes 
to  and  including  the  year  1886;  and  that,  in  default  of  the 
payment  of  the  taxes  for  the  subsequent  years  above  named,  a 
receiver  be  appointed  to  receive  the  rents  and  profits  of  the 
premises  for  the  purpose  of  paying  such  taxes. 

Grant,  J.  (after  stating  the  facts).  Defendant's  counsel 
insist  (1)  that  complainant  has  no  lien  or  right  of  action  for  the 
taxes  prior  to  and  including  188(3;  that  (2)  under  our  system  of 
taxation  complainant  is  not  entitled  to  a  receiver  for  the  unpaid 
taxes. 

1.  It  is  conceded  that  the  law  imposes  upon  a  life  tenant  the 
duty  to  pay  the  taxes  assessed  upon  the  land.  It  is  insisted, 
however,  that  the  personal  covenant  of  the  reversioner  in  the 
mortgiige  to  Frances  S.  Farrand  to  pay  the  taxes,  and  the  joint 
occupancy  of  the  premises  by  the  defendant  and  her  daughter, 
the  reversioner,  operated  to  relieve  the  defendant  from  the  pay- 
ment thereof.  The  defendant,  however,  was  a  stranger  to  the 
agreement  between  the  reversioner  and  B.  C.  Farrand.  The  fact 
that  a  reversioner  mortgages  his  reversion,  and  in  the  mortgage 
agrees  with  the  mortgagee  to  pay  the  taxes,  is  not  of  itself  a 
release  of  that  duty  on  the  part  of  the  life  tenant.  Had  there 
been  a  contract  between  the  defendant  and  her  daughter  by 
which  the  daughter  had  agreed  to  pay  the  taxes,  a  different  ques- 
tion would  have  been  presented,  which  we  are  not  now  called 
upon  to  determine.  A  purchaser  of  a  reversion,  either  by  mort- 
gage or  absolute  conveyance,  is  subrogated  to  all  the  rights  of 
the  original  reversioner  as  against  a  life  tenant.  The  agreed 
facts  c@ntain  nothing  showing  any  intention  or  agreement  to 
release  defendant  from  this  duty  to  pay  the  taxes.  The  decree, 
therefore,  covering  the  taxes  which  the  complainant  and  his 
assignors  have  paid,  is  aiSrmed. 

2.  In  New  York  the  practice  of  appointing  receivers  in  similar 
cases  prevails  (Cairns  v.  Chabert,  3  Edw.  Ch.  312;  Sidenberg 
V.  Ely,  90  N.  y.  257);  but  under  our  method  of  enforcing  the 
collection  of  unpaid  taxes  upon  real  estate,  and  under  our  sys- 
tem of  foreclosing  liens,  we  do  not  think  the  appointment  of 
receivers  the  proper  remedy.  When  it  is  determined  by  adjudi- 
cation that  defendant  is  under  obligation  to  pay  the  taxes,  it  is 
quite  probable  that  she  will  do  so.  The  appointment  of  a 
receiver  is  a  harsh  proceeding,  and  should  be  resorted  to  only  in 
extreme  cases.     In  this  respect  the  decree  will  be  modified.    The 


WASTE    BY    LIFE-TENANT.  49 

taxes,  however,  for  the  years  named  are  past  due,  and,  if  not 
paid  within  GO  days  after  service  upon  the  defendant  of  a  certi- 
fied copy  of  this  decree,  the  complainant  may  pay  them,  and 
include  the  amount  thereof  in  the  sale  ordered  hy  this  decree. 
The  comphiinant  will  recover  costs  of  court  below,  and  the 
defendant  costs  of  this  court.     The  other  justices  concurred. 


Waste    by   Life-Tenant. 

^  Duncorabe  v.  Felt,  81  Mich.  332;  45  N.  W.  1004. 

Long,  J.  The  bill  was  filed  in  this  cause  for  an  injunction  to 
restrain  the  defendant  from  cutting  and  removing  any  of  the 
timber  or  trees  standing  or  growing  upon  the  premises  described 
in  the  bill,  and  from  committing  or  permitting  any  wa^^te  of  said 
premises.  The  bill  alleges  that  complainant  is  the  owner  in  fee 
of  the  premises,  containing  about  160  acres,  subject  to  a  life- 
estate  in  the  defendant.  That  the  complainant  derived  his  title 
through  a  sheriff's  deed,  upon  an  execution  sale  to  satisfy  a 
judgment  against  Seth  H.  Felt.  That  s:iid  Seth  H.  Felt  derived 
his  title  through  a  deed  made  and  executed  to  him  by  the  defend- 
ant, Horatio  O.  Felt,  and  his  wife.  That  at  about  the  time  of 
conveyance  of  said  i)remises  to  Seth  H.  Felt  he  made,  executed, 
and  delivered  a  lease  in  writing  to  Horatio  O.  Felt  and  wife. 
This  lease  is  set  out  in  full  in  the  record.  The  bill  also  alleges 
that  said  Horatio  O.  Felt  is  in  actual  possession  and  occupancy 
of  the  premises  under  and  by  virtue  of  said  lease,  and  that  his 
wife  is  now  deceased.  That  upon  about  nine  acres  of  said  prem- 
ises is  growing  and  standing  a  large  amount  of  valuable  oak  and 
other  timber,  fit  for  sawing  and  lumbering  purposes,  and  that 
said  timi)er  constitutes  a  huge  portion  of  the  value  of  said  prem- 
ises. The  bill  then  states:  "Your  orator  further  shows  that 
the  said  Horatio  O.  Felt  has  caused  to  be  cut,  and  is  causing  to 
be  cut,  and  is  cutting,  lumbering,  and  removing  from  said  prem- 
ises, a  huge  portion  of  said  timber  and  trees  growing  thereon, 
and  threatens  to  continue  so  to  do,  and  has  already  cut  about 
five  acres  of  said  timber.  Youroi'ator  further  shows  that  thereby 
the  said  Horatio  O.  Felt  is  committing  waste  upon  said  premises 
and  irreparable  injury  tliereto,  and  materially  lessening  the  value 
thereof.  Your  orator  further  shows  that  if  the  said  Horatio  O. 
Felt  is  permitted  to  continue  to  cut  down  said  timber  and  lum- 
ber, and  commit  waste  upon  said  premises,  as  aforesaid,  and  is 
not  restrained  from  so  doing  by  an  order  and  injunction  of  this 
honorable    court,  the  value  thereof  will    be    depreciated  to  the 


50  ESTATES    FOR    MFR, 

amount  of  at  least  five  lumdred  dollaiiS.  And  your  orator 
further  shows  that  said  cuttinof  and  removing  said  timber  and 
said  lumber  upon  said  premises  by  said  Felt  has  been  and  is 
being  done  without  the  authority  or  consent  of  your  orator,  and 
against  his  wishes  and  direction  thereon,  and  without  any 
authority  or  right  in  said  Felt  to  do  so.  All  of  which  actings 
and  doings  of  the  said  Horatio  O.  Felt,  who  is  made  defendant 
herein,  are  contrary  to  equity  and  good  conscience,  and  tend  to 
tlie  manifest  wrong,  injury,  and  o])})ression  of  your  orator." 
The  lease  set  out  in  the  bill  of  complaint  as  executed  before  the 
complainant  derived  his  title  under  the  sheriff's  deed,  and  con- 
tains the  following  clause:  "To  have  and  to  hold  the  said 
demised  premises,  with  the  appurtenances,  unto  the  said  parties 
of  the  second  part,  their  executors,  administrators,  and  assigns, 
for  and  during  and  until  the  full  end  and  term  of  their  natural 
lives,  so  long  as  either  of  them  shall  live,  yielding  and  paying 
therefor,  during  the  contiimance  of  the  lease,  unto  the  said 
party  of  the  first  part,  nothing ;  this  lease  being  given  in  con- 
sideration of  the  second  parties  having  conveyed  the  premises 
herein  described  to  the  first  party,  and  under  no  consideration 
whatever  are  the  second  parties  to  l)e  removed  from  the  posses- 
sion of  the  said  premises  except  as  they  shall  voluntarily  sur- 
render their  rights  under  this  lease.  And  it  is  expressly  under- 
stood that  the  second  parties  are  to  have  as  fnll  and  complete 
control  of  said  premises,  while  they  or  either  of  them  shall 
live,  as  though  such  conveyance  had  not  been  made."  A  gen- 
eral demurrer  was  filed,  and  on  the  hearing  of  the  court  below 
was  overruled,  and  decree  entered  for  complainant  making  the 
injunction  perpetual.     Defendant  appeals. 

The  claim  of  counsel  for  the  complainant  is  that  on  the  premi- 
ses there  is  only  about  nine  acres  of  growing  timber;  that  this 
timber  is  needed  for  the  use  of  the  farm,  and  its  destruction 
makes  a  case  of  actionable  waste,  to  be  restrained  by  injunc- 
tion. The  rights  of  the  parties  must  be  determined  by  the  con- 
struction given  to  these  clauses  in  the  lease  above  granted.  The 
title  to  the  premises  was  in  defendant,  Horatio  O.  Felt.  When 
he  and  his  wife  deeded  the  same,  they  took  back  this  lease,  by 
the  terms  of  which  they  were  to  have  and  to  hold  the  premises 
"  for  and  until  the  full  end  and  term  of  their  natural  lives,  so 
long  as  either  of  them  shall  live,  yielding  and  paying  nothing." 
The  consideration  was  the  conveyance  of  the  premises  to 
Seth  H.  Felt.  It  is  further  provided  in  the  lease  that  the 
lessees  are  not  to  be  removetl  from  the  premises  on  any 
consideration  whatever,  except  as  they  might  voluntarily  sur- 
render their  rights  under  the  lease.     Then  follows  the  clause 


WASTK    15Y    LIFE-TENANT.  51 

which  it  is  claimed  civcs  the  defciulant  the  ri<2:ht  to  take 
the  timber  in  question.  "  And  it  is  expressly  understood 
that  the  second  parties  are  to  have  as  full  and  complete 
control  of  said  premises,  while  they  are  or  either  of  them  shall 
live,  as  thou<;h  such  conveyance  had  not  been  made."  The 
complainant  acquired  all  the  rights  in  the  ])remises  under  his 
purchase  at  the  execution  sale  that  Seth  H.  Felt  had,  but 
with  notice  of  all  the  conditions  in  this  lease.  It  is  therefore 
contended  by  counsel  that  the  lease  gave  defendant  the  same 
interest  or  property  in  the  estate  as  he  had  before  he  and  his 
wife  conveyed  the  lands  to  Seth  H.  Felt,  and  that  he  can  deal 
with  it  in  all  rcsi)ect8  as  though  he  was  the  owner,  the  only  lim- 
itation being  that  of  duralion  of  the  estate,  and  that  the  clauses 
in  the  lease  above  set  out  in  effect  are  equivalent  in  meaning 
with  the  old  clause  in  leases  without  im[)eachment  for  waste. 

Counsel  for  defendant  insists  that  the  doctrine  laid  down  in 
Stevens  v.  Rose,  69  Mich.  260;  37  •  N.  W.  Rep.  205,  fully  sus- 
tains his  claim  that  the  defendant  has  the  right  to  remove  this 
timber,  and  do  all  other  acts  that  he  could  have  done  as  owner 
in  fee,  and  that  the  defendant's  estate  is  not  impeachable  for 
waste.  His  claim  is  not  sustained  by  that  case.  It  was  there 
held  that  the  words  "  to  have  and  to  hold,  and  to  use  and  control 
as  the  lessee  thinks  proper  for  his  benefit  during  his  natural  life," 
clearly  import  a  lease  without  impeaching  for  waste,  and  that 
the  defendant  had  the  right  to  do  all  tho-e  acts  which  such  a 
tenant  may  exercise,  but  that  the  wor<Is  were  not  to  be  treated 
as  importing  a  license  to  destroy  or  injure  the  estate,  but  to  do 
all  reasonable  acts  consistent  with  the  preservation  of  the  estate 
which  otherwise  might  in  law  be  waste.  In  the  present  case  it  is 
conceded  that  there  is  only  9  acres  of  timber  on  the  whole  160- 
acre  tract,  and  that  the  defendant  has  already  cut  about  5  acres, 
and  threatens  to  cut  and  carry  away  the  remainder.  I  have 
never  understood  the  rule  of  the  common  law  to  be  so  broad  as 
contended  for  by  counsel  for  defendant.  The  clause  '*  without 
impeachment  for  waste  "  never  was  extended  to  allow  the  very 
destruction  of  the  estate  itself,  but  oidy  to  excuse  permissive 
waste.  10  Bac.  Abr.,  p.  468,  tit.  "Waste."  In  Packington  v. 
Packington,  decided  in  1744,  and  cited  by  Bacon  (reported  3  At  k. 
215),  the  plaintiff  alleged  that  the  defendant,  Sir  H.  Packing- 
ton,  bad  cut  down  a  great  numlicr  of  trees,  and  hud  threatened 
to  cut  down  and  destroy  them  all.  Lord  Hardwicke  granted  an 
injunction  to  restrain  the  waste.  The  lease  in  the  case  was  made 
without  impeachment  of  waste.  Mr.  Greenleaf  in  his  Cruise  on 
Real  Property  (volume  1,  p.  129),  lays  down  the  rule  thus: 
"The  clause  without  impeachment  of  waste,  is,  however,  so  far 


52  ESTATES    FOR    LIKE. 

restrained  in  equity  that  it  does  not  en.'iblo  a  tenant  for  life  to 
commit  malicious  waste  so  as  to  destroy  tlio  estate  which  is  called 
*  equitable  waste,'  for  in  that  ease  the  court  of  chancery  will  not 
only  stop  him  by  injunction,  but  will  also  order  him  to  repair 
if  possible  the  damage  he  has  done."  In  10  Bac.  Abr.  tit. 
*'  Waste,"  p.  469,  it  is  said  :  ♦*  So,  whore  a  lease  was  made  by  a 
bishop  for  twenty-one  years  without  impeaclitnent  of  waste,  of 
land  that  had  many  trees  upon  it,  and  the  tenant  cut  down  none 
of  the  trees  until  about  halt  a  year  before  the  expiration  of  his 
term,  and  then  began  to  fell  the  trees,  the  court  granted  an  in- 
junction ;  for  though  he  might  have  felled  ti'ces  every  year  from 
the  beginning  of  his  term,  and  then  they  would  have  been  grow- 
ing up  again  gradually,  yet  it  is  unreasonable  that  he  should  let 
them  grow  till  towards  the  end  of  his  term,  and  then  sweep  them 
all  away;  for,  though  he  had  power  to  commit  waste,  yet  this 
court  will  model  the  exercise  of  that  pf)wer,"  citing  Abraham  v. 
Bubb,  Freem.  Ch.  53.  At  the  common  law  no  prohibition 
against  waste  lay  against  the  lessee  for  life  or  years  deriving  his 
interest  from  the  act  of  the  party.  The  remedy  was  confined  to 
those  tenants  who  derived  their  interest  from  the  act  of  the  law, 
but  the  timber  cut  was,  at  common  law,  the  property  of  the 
owner  of  the  inheritance,  and  the  words  in  the  lease  "  without 
impeachment  of  waste"  had  the  effect  of  transferring  to  the  lessee 
the  property  of  the  timber.  Bowles'  Case,  11  Coke,  79  ;  Co. 
Litt.  220a.  The  modern  remedy  in  chancery  by  injunction  is 
broader  than  at  law,  and  equity  will  interpo^^e  in  many  cases,  and 
stay  waste  where  there  is  no  remedy  at  law.  Chancery  will  in- 
terpose when  the  tenant  affects  the  inheritance  in  an  unreasonable 
and  unconscientious  manner,  even  though  the  lease  be  granted 
without  impeachment  of  waste.  4  Kent.  Comm.  (13th  ed.)  78; 
Perrot  v.  Perrot,  3  Atk.  94;  Aston  v.  Aston,  1  Ves.  Sr.  264; 
Vane  v.  Barnard,  2  Vern.  738  ;  Kane  v.  Vanderl)urgh,  1  Johns. 
Ch.  11.  In  the  case  of  Kane  v.  Vanderburgh,  supra,  it  was  said : 
"  Chancery  goes  greater  lengths  than  the  courts  of  law  in  stay- 
ing waste.  It  is  a  wholesome  jurisdiction,  to  be  liberally  exer- 
cised in  the  prevention  of  irreparable  injury,  and  depends  on 
much  latitude  of  discretion  in  the  court."  In  this  State  an 
action  on  the  case  for  waste  is  authorized  by  chapter  271,  How. 
St.  This  has  superseded  the  common-law  remedy,  and  relieves 
the  tenant  from  the  penal  consequences  of  waste  under  the 
Statute  of  Gloucester,  as  he  now  recovers  no  more  than  the 
actual  damages  which  the  premises  have  sustained,  while  that 
statute  gave  by  way  of  penalty  the  forfeiture  of  the  place 
wasted,  and  treble  damages;  and  this  harsh  rule  was  adopted 
by  many  of  the  American  States  by  the  early  statutes.     This 


ESTATE   DURING    COVERTURE    AND  CURTESY.  53 

t'tatuto  giving  a  right  of  notion  in  courts  of  law  for  waste  does 
not,  however,  deprive  the  court  of  chanceiy  of  jurisdiction  in 
proceedings  to  restrain  threatened  waste. 

There  can  he  no  donht  that  the  de'fendant  in  the  pi'esent  case 
has  much  of  tiie  character  of  a  tenant  in  fee,  but  he  cannot 
destroy  the  inheiitance.  He;  may  take  the  timber  for  his  own 
use,  and  <io  all  those  acts  which  a  prudent  tenant  in  fee  would  do. 
Ho  cannot  })ull  down  the  buildings  to  destroy  them,  or  cut  and 
ilest  I'oy  fi'uit  t  re(!s,  or  those  plant  e'l  for  ornament  and  shelter; 
neitlier  can  he  be  permitted  to  entirelv  strip  the  land  of  all  tim- 
ber, and  convert  into  luml>er,  and  sell  it  away  from  the  inheiit- 
ance.  It  is  not  claimed  that  the  tiinher  is  being  used  for  betici'- 
ments  on  the  premises,  hut  it  is  admitted  that  tlie  life-tenant  is 
selling  for  liis  own  gain  and  profit.  U'he  demurrer  was  properly 
overruled.  The  decree  of  the  court  below  will  be  affirmed,  with 
costs.     The  otiier  justices  concurred. 


CHAPTER     VI. 

ESTATES  ARISING  OUT  OF  MARITAL  RELATIONS. 

SECTIONS   1   AND    II. 

estatp:  during  coverture  and  curtesy. 

Bozarth  v.  Larjient,  128  111.  95;  21  N.  E.  218. 
McTiffue  V.  McTigue,  116  Mo.  136;    22  S.   W.  501. 

Marital  Rights  of  Husband  in  Property  of  the  Wife. 

Bozarth  v.  Largent,  128  HI.  95;  21  N.  E.  218. 

Shope,  J.  Tills  was  an  action  of  ejectment,  brought  by  James 
Bozarth,  Mary  L.  Bozarth,  and  Ida  B.  Cook,  the  heirs  at  law 
of  Louisa  Bozarth,  deceased,  again-^t  William  Largent,  for  the 
recovery  in  lee  of  tlieE.  -^  S.  W.  ^  section  17,  and  the  W.  -^  of 
the  8.  W.  ^  of  section  8,  all  in  township  23  N.,  range  2  W.  of 
the  third  P.  M.,  in  Tazewell  County.  General  issue  was 
filed  and  a  trial  had,  resulting  in  a  finding  and  judgment  for 
defendant.  Plaintiffs  below  prosecute  this  writ  of  error.  The 
facts  are  as  follows:  Louisa  Bozarth,  now  deceased,  being  the 
owner  in  fee  of  said  lands,  which  she  had  inherited  from  her 
father,  was,  on  August  19,  1803,  married  to  Asa  Bozarth.  They 
lived   togetlier   as    husband  and   wife  until  Novenriber   1,1868, 


54  ESTATES    ARISING     OUT    OF     MARRIAGE. 

when  she  died,  intestate,  letiving  her  husband,  who  is  still  living, 
and  the  pluiiitiffs,  her  children  and  only  heirs  at  hiw,  surviving 
her.  On  March  5,  18()8,  she  and  her  husband  executed  their 
mortgage  upon  the  hmds  in  controversy,  and  other  hinds  of  the 
husband,  to  Anna  R.  Cohrg,  to  secure  the  payment  of  $2,500 
evidenced  by  the  note  of  Asa  Bozarlh,  the  husband,  payable  two 
yi'ars  after  date,  with  10  per  cent  interest,  payable  annually, 
and  containing  a  clause  that,  in  default  of  the  payment  of  the 
annual  interest,  the  principal  should  become  due.  The  raort- 
ofasre  was  in  the  usual  form,  and  contained  a  release  of  all  home- 
stead  rights;  and  the  wife  acknowledged  the  release 
of  all  her  rights  of  homestead,  but  the  husband  did 
not  acknowledge  the  release  of  homestead,  his  acknowl- 
edgment being  simply  that  he  acknowledged  the  mort- 
ffaofe  to  be  his  free  act  and  deed  for  the  uses  and 
purposes  herein  set  forth.  On  March  27,  1873,  Mary  C.  Maus, 
the  assignee  of  said  note  and  mortgage,  tiled  her  bill  in  the  cir- 
cuit court  of  Tazewell  County  against  the  said  Asa  Bozarth,  and 
the  plaintiffs  and  others,  for  the  foreclosure  of  said  mortgage. 
Summons  was  duly  served  on  all  the  defendants,  and  a  guardian 
ac/ Z^7ew^  was  ap[)ointed  for  James,  Ida  B,  and  Mary  Bozarth, 
the  plaintiffs,  they  being  then  minors,  who  answered.  At  the 
May  term,  1873,  a  decree  was  entered,  foreclosing  said  mort- 
giige,  and  finding  due  thereon  the  sum  of  $2,973.75,  and  a  soli- 
citor's fee  of  $125,  provided  for  in  the  mortgage,  and  ordering 
a  sale  of  the  premises,  etc.  Sale  was  made  under  said  decree 
July  12,  1873,  to  William  Don  Maus,  for  the  sum  of  $3,048.84. 
The  sale  was  made  e?i  viasse,  the  master  having  failed  to  obtain 
bids  on  the  several  tracts  when  separately  offered.  Certificate 
of  purchase  was  made  and  recorded  the  same  day.  At  the  May 
term,  1874,  of  the  McLean  circuit  court,  Albert  Welch  recov- 
ered a  judgment  against  the  said  Asa  Bozarth,  John  Bo- 
zarth, and  Elihu  Bozarth  for  $1,250.50  and  costs. 
Execution  was  issued  to  the  sheriff  of  McLean  County, 
and  returned  August  19,  1874,  when  Welch  assigned  the  judg- 
ment to  George  VV.  Thompson.  On  the  same  day  an  alias  exe- 
cution issued  to  the  sheriff  of  Tazewell  County,  which  came  to 
that  oflScer's  hands  August  20,  1874,  and  was  levied  on  all  the 
land  sold  under  the  foreclosure  decree,  and  a  certificate  of  levy 
was  filed  and  recorded  August  31,  1874.  On  October  10,  1874, 
a  certificate  of  redemption  from  the  sale  under  the  decree  of 
July  12,  1873,  was  executed  by  the  sheriff  of  Tazewell  County, 
and  recorded  the  same  day.  On  October  31,  1874,  the  land 
was  sold  671  masse  by  the  sheriff  to  Welch  for  redemption  money 
and  costs.     On  January  14,  1875,  after  the  term  of  office  of  the 


ESTATE    DURING    COVERTURE    AND    CURTESY.  55 

sherifFhad  expired,  he  made  and  delivered  to  Welcli  a  deed  for 
tlie  premises,  dating  the  same  as  of  the  day  of  sale.  On  the 
same  day,  Pratt,  the  then  sherifl',  also  executed  a  deed  to  Welch 
for  the  lands  on  the  same  sale.  Welch  and  wife,  by  their  deed 
of  December  1,  1875,  conveyed  the  laud  to  John  Bozarth,  and 
he,  on  May  22,  1882,  conveyed  the  same  to  William  Largent, 
defendant  in  error,  who  went  into  possession  of  the  same. 

At  the  common  law  a  husband  held  in  right  of  his  wife  all  her 
lauds  in  possession,  and  owned  the  rents  and  profits  thereof  ab- 
solutely. 1  Washb.  Real  Prop.  276;  Tied.  Real  Prop.,  §  90; 
Haralson  v.  Bridges,  14  111.  37  ;  Clapp  i?.  Inhabitants  of  Stough- 
ton,  10  Pick.  463;  Decker  v.  Livingston,  15  Johns.  479.  The 
birth  of  issue  was  not  necessary  to  this  right  of  the  husband, 
which  continued  during  the  joint  lives  of  the  husband  and  wife. 
It  was  called  an  estate  during  coverture,  or  the  husband's  free- 
hold esiaiejure  uxoris.  Kibbie  v.  Williams,  58  111.  30;  Butter- 
field  v.  Beall,  3  Ind.  203  ;  Montgomery?;.  Tate,  12  Ind.  615; 
Croft  V.  Wilbar,  7  Allen,  248.  It  differed  from  curtesy  initiate, 
in  its  being  a  vested  estate  in  possession,  while  the  latter  is 
a  contingent  future  estate,  dependent  upon  the  birth  of  issue. 
Wright's  Case,  2  Md.  429-453.  It  is  hehl  in  right  of  the  wife, 
and  was  not  added  to  or  diminished  when  curtesy  initiate 
arose.  Subject  to  the  husband's  beneficial  enjoyment  during 
the  coverture,  the  ownership  remained  in  the  wife,  and,  on 
dissolution  of  the  marriage,  was  discharged  from  such  estate  of 
the  husband.  Stew.  Husb.  &  W.,  §  146.  Where  there  was 
marriage,  seisin  of  the  wife,  and  birth  of  issue  capable  of  inher- 
iting, the  husband,  by  the  common  law,  took  an  estate  in  the 
wife's  land  during  coverture.  This  was  an  estate  of  tenancy  by 
the  curtesy  intimated,  and  which  would  become  consummate 
upon  the  death  of  the  wife  in  the  lifetime  of  the  tenant.  A  ten- 
ant by  the  curtesy  was  seised  of  an  estate  of  freehold,  which 
was  subject  to  alienation,  and  was  liable  to  be  taken  on 
execution  for  his  debts.  Tied.  Real  Prop.,  §  101;  Howey  v. 
Goings,  13  III.  95;  Jacobs  v.  Rice,  33  111.  369;  Cole  v.  Van 
Riper,  44  111.  58;  Beach  v.  Miller,  51  111.  206;  Lang  v.  Hitch- 
cock, 99  111.  550. 

The  act  of  1861,  known  as  the  "  Married  Woman's  Act" 
provides:  "that  all  the  property,  both  re;d  and  personal, 
belonging  to  any  married  woman  as  her  sole  and  seperate  prop- 
erty, or  which  any  woman  hereafter  married  owns  at  the  time  of 
her  marriage,  or  which  any  married  woman  during  coverture  ac- 
quires in  good  faith  from  any  person  other  than  her  husband,  by 
descent,  devise,  or  otherwise,  together  with  all  the  rents,  issues, 
increase,  and  profits  thereof,  shall,   nothwithstanding  her  mar- 


56  ESTATES    ARISING    OUT    OF    MARRIAGE. 

riage,  be  and  remain  during  coverture,  her  sole  and  separate 
property,  under  her  sole  control,  and  be  held,  owned,  pos- 
sessed, and  enjoyed  by  her  the  same  as  though  she  was  sole  and 
unmarried,  and  shall  not  be  sul)joct  to  the  disposal,  control,  or 
interference  of  her  husband,  and  shall  be  exempt  from  execu- 
tion or  attachment  for  the  del)tsof  her  husband."  In  this  case, 
Louisa  Bozarth,  who  was  common  source  of  title,  was  the  owner 
of  the  lan<l  in  controversy,  as  it  is  conceded,  at  the  time  of  her 
marriage,  August  19,  18(53,  to  Aza  Bozarth.  The  niiirriage  hav- 
ing taken  place  after  the  act  of  18G1  had  taken  eflect,  and  the 
wife  being  then  the  owner  of  the  land  in  question,  it  was  not, 
during  her  coverture,  subject  to  the  control,  interference,  or  dis- 
posal of  her  husband,  or  liable  for  his  debts  or  other  obligations. 
The  effect  of  the  statute  was  to  abrogate  the  husband's  estate  in 
her  lands,  or  the  estate  he  would  have  had  at  common  law  dur- 
ing the  coverture,  and  consequently  during  that  period  he  had 
no  estate  therein  liable  to  execution  or  attachment.  The  act  did 
away  with  the  estate  he  would  have  had  at  common  law,  grow- 
ing out  of  the  mere  marital  relation,  and  of  his  curtesy  initiate; 
and  it  therefore  follows,  if  the  wife  had  been  living  at  the  time 
of  the  redemption  and  sale  by  the  creditor  of  her  husband,  that 
proceeding  would  not  have  divested  any  right  of  herself  or  hus- 
band, nor  conferred  any  right  upon  the  purchaser. 

The  question,  however,  remains  whether  Asa  Bozarth,  the 
husband,  on  the  death  of  his  wife,  1865,  acquired  an  estate  in 
her  land  as  tenant  by  the  curtesy.  We  have  already  seen  that 
the  property  of  a  married  woman,  under  the  act  of  1861,  not- 
withstanding her  marringe,  was  to  be  and  remain  during  cover- 
ture her  sole  and  separate  property,  and  was  not  subject  to  the 
husband's  control,  or  liable  for  his  debts.  The  general  effect  of 
statutes  of  this  kind  is  to  destroy  the  marital  rights  of  the  hus- 
band in  his  wife's  estate;  but  a  statute  may  exempt  her  property 
from  his  debts  without  in  any  way  destroying  his  rights  therein. 
Unless  tenancy  by  the  curtesy  is  destroyed  by  the  statute  by  ex- 
press words  or  necessary  implication,  or  by  the  wife's  disposition 
of  her  property  by  virtue  of  her  power  over  it,  he  will  be  held 
to  have  an  estate  by  the  curtesy  at  her  death.  The  prevailing 
opinion  seems  to  be  that  while  separate  property  acts  do  suspend 
dining  coverture  all  the  rights  of  a  husband,  or  his  creditors,  in 
statutory  separate  property,  they  do  not  destroy  curtesy,  or  pre- 
vent its  vesting  on  her  death,  unless  such  an  event  is  clearly 
excluded  by  the  statute;  as  where  the  statute  not  only  provides 
that  the  property  of  the  wife  shall  be  hers,  etc.,  but  also  defines 
her  husband's  interest  therein,  if  she  dies  intestate,  in  which  case 
curtesy  is  excluded.     Where  she  has  power  to  alienate  or  charge 


ESTATE    DURING    COVERTUIiE    AND    CURTESY.  57 

her  property,  she  may  thereby  defeat  eurtesy,  but  the  statute 
must  contain  ex[)ress  words  to  enable  her  to  convey  alone;  and, 
also,  when  she  has  power  of  disposition  of  the  property  by  will 
she  may  thereby  defeat  curtesy.  Stew.  Husb.  &  W.,  §§  161, 
243;  In  re  Winne,  2  Lans.  21;  Hatfield  v.  Sneden,  54  N.  Y. 
280;  Noble  V.  McFarland,  51  III.  22();  Freeman  v.  Hartman, 
45  111.  57;   Colo  V.  Van  Iliper,  supra. 

It  will  be  seen  that  the  married  woman's  act  of  1861  does  not 
attempt  to  define  the  husband's  rights  in  his  wife's  property 
after  her  decease,  nor  does  it  give  her  any  power  of  di!«i)Osal  of 
her  separate  properly,  independent  of  tlie  husband.  The  pur- 
pose and  effect  of  the  statute  was  to  secure  to  the  wife  the  con- 
trol of  her  separate  property  during  coverture.  During  that 
peiiod  the  husband's  common-law  rights  in  her  property  are 
suspended.  We  are  of  opinion  that  this  act  did  not  have  the 
effect  of  destroying  the  estate  by  curtesy,  but  that,  after  the 
passage  of  that  act,  and  prior  to  the  passage  of  the  act  of  1874, 
the  husband,  on  his  wife's  death,  leaving  issue  of  the  marriage, 
took  a  life-estate  in  her  land  as  tenant  by  the  curtesy.  Alter 
the  passage  of  the  act  under  consideration,  the  estate,  by  the 
curtesy  in  the  lands  of  the  wife,  did  not  vest  in  the  husband 
until  the  death  of  the  wife  (Lucas  v.  Lucas,  103  111.  121  ;  Beach 
V.  Miller,  51  111.  206)  ;  but  upon  her  death  such  estate  became 
consummate,  and  vested  in  the  husband  in  all  respects  as  at  com- 
mon law  (Noldc  V.  McFarland,  Id.  226;  Shorthall  v.  Hincklev, 
31  111.  2iy;  Gay  i;.  Gay,  123  111.  221  ;  13  N.  E.  Rep.  813  ;  Casl- 
ner  v.  W'ali-od,  83  111.  171;.  It  follows  that  we  are  of  opinion 
that  upon  the  death  of  the  wife,  in  1868,  leaving  issue  surviving, 
the  husband,  Asa  Bozarth,  became  seized  of  a  freehold  interest 
in  the  lands  in  controversy  as  tenant  by  the  curtesy,  and  which 
was  subject  to  seizure  and  sale  on  execution  against  him. 

The  validity  of  the  sale  of  the  premises  under  the  decree  of 
foreclosure,  and  the  redemption  upon  the  execution  issued  upon 
the  judgment  in  favor  of  Welch,  and  against  the  said  Asa  Bozarth, 
and  the  sale  thereunder,  are  questioned  by  plaintiff  in  error.  If 
the  foreclosure  sale  was  void  for  any  cause,  the  judgment  cred- 
itor redeeming  therefrom  acquired  no  title  under  his  purchase, 
for  the  reason  that  his  rights,  like  those  of  the  purchaser  at  the 
sale  under  the  decree  of  foreclosure,  are  dependent  upon  a  valid 
judgment  or  decree  of  sale.  Johnson  v.  BaUer,  38  III.  99  ; 
Mulvey  v.  Carpenter,  78  111.  580;  Keeling  v.  Heard,  3  Head, 
592. 

It  is  objected  that  there  was  no  sufficient  service  of  summons 
upon  the  plaintiffs  in  error,  who  were  defendants  in  the  fore- 
closure suit.     The  return  to  the  summons  therein  is  as  follows; 


58  ESTATES    ARISING   OUT    OF    MARKIAGE. 

"  Executed  this  writ  by  reading  the  same  to  the  within-named 
Asa  Bozartii,  James  Bozarth,  Ida  Bell  Bozarth,  and  Mary 
Bozarth,  and  by  delivering  to  each  a  true  copy  hereof,  on  the 
10th  day  of  Ai)ril,  1872,"  and  i)roperly  signed  by  the  sheriff. 
The  process  was  returnable  to  the  May  term,  1873.  The  service 
was  in  apt  time.  The  fact  that  the  summons  was  read  to  the 
defendants  did  no  harm,  and  that  part  of  the  return  may  be  dis- 
regarded. It  is  apparent  that  the  circuit  court  had,  therefore, 
jurisdiction  of  the  subject-matter  and  of  the  parties,  and  mere 
errors,  or  irregularities,  if  any,  cannot  be  taken  advantnge  of  in 
this  collateral  proceeding. 

It  is  objected  that  the  mortgaged  premises  were  improperly 
sold  en  masse.  If  this  be  conceded,  it  would  not  render  the  sale 
void;  at  most,  it  would  only  be  ground  for  setting  the  sale  aside 
on  proper  application  to  the  court  in  apt  time.  It,  however, 
appears  that  the  land  was  offered  by  the  master  in  separate  par- 
cels, and,  receiving  no  bids  therefor,  it  was  then  offered  and 
sold  en  masse.  We  are  not  prepared  to  say  that  the  action  of 
the  master  was  not  warranted. 

It  is  next  objected  that  all  the  lands  sold  under  the  decree 
were  redeemed  en  wmsse,  and  so  sold  to  Welch  under  the  execu- 
tion. A  judgment  creditor's  right  of  redemption  is  no  greater 
or  more  extensive  than  that  of  the  original  debtor.  He  cannot 
redeem  in  a  case  where  the  original  owner  cannot  redeem,  and 
within  the  time  allowed  by  law  for  redemption  by  the  debtor. 
In  Hawkins  v.  Vineyard,  14  III.  2(3,  a  quarter  section  of  land  had 
been  sold,  of  which  the  debtor  owned  only  65  acres,  and  it  was 
held  he  could  not  redeem  the  65  acres,  but  that  he  must  redeem 
the  whole  or  none.  A  person  cannot  redeem  an  undivided  share 
of  land  by  paying  his  [)rt)portional  share  of  the  debt;  and  a  part 
owner  must  redeem  the  whole.  Durley  v.  Davis,  69  111.  133. 
A  purchaser  of  a  part  of  mortgaged  land  cannot  redeem  that 
part  by  paying  his  proportion  of  the  debt.  Meacham  v.  Steele, 
93  111.  135.  When  the  purchaser  at  a  master's  sale  of  an  entire 
tract  of  land  afterwards  assigns  an  undivided  interest  in  such 
purchase  there  can  be  no  legal  redemption  of  such  undivided 
interest  by  a  judgment  creditor.  Groves  v.  Maghee,  72  111. 
526;  Titsworth  v.  Stout,  49  111.  78.  Section  25^,  c.  77,  Kev. 
St.,  provides:  "  Any  person  entitled  to  redeem  may  redeem  the 
whole  or  any  part  of  the  premises  sold  in  like  distinct  parcels  or 
quantities  in  which  the  same  are  sold.  If  the  several  mort- 
gaged tracts  had  been  sold  separately,  redemption  might  have 
been  made  of  any  one  or  more  of  the  tracts.  In  such  case  the 
amount  that  each  tract  sold  for  would  furnish  the  basis  for 
determining  the  amount  to  be  paid  in  order  to  redeem  ;    but,  as 


ESTATE    DURING    COVERTURE    AND    CURTESY.  59 

the  several  parcels  of  land  were  sold  together,  and  for  a  gross 
sum,  neither  the  debtor  nor  his  judgment  creditor  could  redeem 
without  paying  the  full  amount  for  which  the  same  sold,  with 
interest.  The  law  gives  the  debtor  12  months  in  which  to  re- 
deem, after  which  time  any  judgment  creditor  of  the  debtor 
may  also  redeem  within  15  months  from  the  date  of  the  sale; 
but,  in  so  doing,  the  creditor  will  possess  no  greater  right  than 
his  debtor  had  within  the  time  limited  for  redemption  by  him. 
After  the  expiration  of  twelve  months  from  the  sale,  the  right 
of  redemi)tion  of  the  judgment  debtor  is  gone.  He  no  longer 
has  any  interest  in  the  i)remises,  and  cannot  take  advantage  of 
mere  irregularities  in  making  redemption  by  his  judgment  cred- 
itor, and  his  acquisition  of  title  by  virtue  of  a  sale  in  pursu- 
ance of  such  redemption.  The  purchaser  at  the  foreclosure 
sale  makes  no  objection  to  the  validity  of  the  redemption,  and, 
having  accepted  the  money,  the  redemption  was  complete. 
The  title  of  Asa  Bozarth  being  gone  by  his  failure  to  redeem 
within  the  time  allowed  by  law,  he  was  not  injured  by  the  sale 
en  masse  on  the  execution,  if,  indeed,  the  sale  could  have  been 
otherwise  made. 

There  is  no  force  in  the  objection  that  the  redemption  should 
have  been  made  in  the  name  of  Thompson,  assignee  of  Welch, 
the  judgment  creditor.  Sweezy  v.  Chandler,  11  111.  445.  It  in 
no  way  concerns  the  plaintiffs  in  error  whether  redemption  was 
made  in  the  name  of  the  plaintiff  in  the  judgment  against  Asa 
Bozarth  or  in  the  name  of  his  assignee.  No  proof  was  made  or 
offered  at  the  trial  tending  to  show  that  the  premises,  when  sold 
under  the  decree  of  foreclosure,  or  when  the  mortgage  was 
given,  were  occupied  by  the  mortgagors,  or  either  of  them,  as 
a  homestead  ;  nor  docs  it  ai)pear  that  they  were  at  any  time  so 
occupied.  Therefore,  the  question  of  the  right  of  homestead 
was  not  presented  for  adjudication,  and  cannot  now  be  consid- 
ered in  this  court.  It  ma}',  however,  be  observed  that  the 
mortijaire  was  executed  and  acknowledged  before  the  act  of 
1872,  lelating  to  conveyances,  took  effect,  and  the  cases  cited  by 
counsel  were  determined  under  the  provisions  of  that  act. 

It  is  claimed  that  only  the  title  of  Louisa  Bozarth  passed  by 
the  sale  under  the  decree  of  foreclosure,  and  therefore  a  creditor 
of  her  husband  could  not  redeem  from  that  sale.  This  conten- 
tion is  not  well  grcmnded.  While  the  husband,  as  we  have  seen, 
at  the  time  of  the  execution  of  the  mortgage  had  no  estate  in  the 
land,  it  was  necessary  to  the  execution  of  a  valid  mortgage  or 
conveyance  of  his  wife's  estate  therein  that  he  should  join  in  the 
mortgage  or  conveyance,  which  he  did.  The  mortgage  was  in 
the  usual  form,  and  contained  covenants   of  both   the  husband 


60  ESTATES    ARISING    OUT    OF    MARRIAGE. 

and  wife  of  good  right  to  convey,  seisin  in  fee,  and  of  general 
warranty,  and  was  siifKciont  to  |):iss  not  only  tiic  estate  of  the 
wife,  hut  also  all  the  estate,  right,  and  interest  of  the  husband  in 
the  ])r()iierty,  which  he  than  had,  or  might  subseijuentiy  acquire. 
If  he  had  no  estate  by  the  curtesy  initiate  or  otherwise  during 
the  life  of  the  wife,  ui)on  her  death  he  took  an  estate  for  life  in 
this  land  as  tenant  b}'  the  eui'tes}',  which,  under  the  covenants 
of  the  niortijaiie,  inured  to  the  benefit  of  the  niortfjaijor.  Goeh- 
cnour  V.  Mowry,  33  III.  331.  The  sheriff's  deed  was  dated 
October  31,  1874,  the  date  of  the  sale  upon  the  redemption,  but 
was,  in  fact,  executed  January  14,  1875,  after  the  term  of  office 
of  the  sheriff  had  expired.  Section  21  of  the  act  relating  to 
judgments,  etc.,  provides  that  the  redeeming  judgment  creditor 
shall  be  considered  as  havino-  bid  at  the  sale  the  amount  of  the 
redemption  money  paid  by  him,  with  interest  thereon  and  the 
costs  of  the  redemption  and  sale  ;  *'  and,  if  no  greater  amount  is 
bid  at  such  sale,  the  j^remiscs  shall  be  struck  off  to  such  person 
making  such  redem[)tion,  and  the  officers  shall  forthwith  execute 
a  deed  of  the  premises  to  him,  and  no  other  redemption  shall  be 
allowed."  It  is  urged  that  the  provision  of  the  statute  requir- 
ing the  deed  to  be  made  "  forthwith  "  is  mandatory,  and  that  a 
failure  in  this  respect  would  render  the  sale  void.  We  are  not 
prepared  to  so  hold.  The  purchaser  is  entitled  to  a  deed  forth- 
with in  such  case,  but  the  failure  of  the  sheriff  to  make  the  deed 
immediately  after  the  sale,  will  not  render  the  redemption  and 
sale  invalid.  This  provision  of  the  statute  must  be  regarded  as 
directory  only. 

It  is  lastly  objected  that  Reeves,  the  sheriff,  had  no  authority 
to  make  the  deed  after  his  term  of  office  had  expired.  Section 
30  of  the  act  relating  to  judgments,  etc.,  provides:  "  The  deed 
shall  be  executed  by  the  sheriff,  master  in  chancery,  or  other 
officer  who  made  such  sale,  or  by  his  successor  in  office,  etc." 
Freeman,  in  his  work  on  Execution  (section  327),  says ;  "  The 
officer  who  made  the  sale,  whether  he  continues  in  office  or  not, 
is,  in  ordinary  circumstances,  and  in  the  absence  of  statutory 
provisions  to  the  contrary,  the  proper  person  to  make  the  con- 
veyance. *  *  *  When  the  term  of  the  officer  who  made  the 
sale  terminates,  his  power  to  make  the  conveyance  continues. 
In  fact  unless  the  new  sheriff  is  specially  authorized  by  statute, 
he  seems  to  have  no  authority  whatever  to  make  a  conveyance 
based  on  a  sale  made  l)y  his  predecessor. 

We  are  of  opinion  that  the  deed  made  by  the  retiring  sheriff, 
under  our  statute,  was  valid.  If  this  is  so,  it  will  be  unneces- 
sary to  determine  whether  the  deed  made  by  his  successor  in 
office  is  good  or  not.     In  any  event,  under  the  section  of  the 


CURTESY    IN    wife's    SEPAKATE    ESTATE.  61 

statute  quoted,  by  one  deed  or  the  other,  the  title  acquired  under 
the  redemption  sale  passed  lo  the  grantee  in  said  deeds.  The 
plaintilFs  claimed  an  estate  in  fee  in  the  land  in  controversy, 
with  a  present  right  of  possession.  Their  father  having  a  life- 
estate  in  the  pro[)erty,  which  has  passed  by  virtue  of  the  fore- 
closuio  sale,  the  redemption  and  sale  thereunder,  and  the  deeds 
in  pursuance  thereof  to  the  defendant,  they  are  not  entitled  to 
recover  of  the  defendant  the  possession  of  said  lands  during  the 
continuance  of  such  estate.  Until  the  termination  of  that  life- 
estate  l»y  the  death  of  the  life-tenant,  their  right  to  a  recovery 
must  be  postponed.  Some  questions  are  raised  as  to  the  effect 
of  the  proceedings  before  mentioned  upon  the  fee  to  the  land 
which  is  not  now  before  us  for  consideration,  and  no  adjudica- 
tion is  made  in  respect  thereof.  The  judgment  of  the  circuit 
court  will  be  affirmed. 


Curtesy  in  Wife's  Separate  Estate  When  Barred. 

McTigue  V.  McTigue,  116  Mo.  136;  22  S.  W.  501. 

Brace,  J.  This  is  an  action  in  ejectment  to  recover  possession 
of  a  lot  in  the  city  of  St.  Louis,  in  which  the  plaintiff  had  judg- 
ment, and  the  defendant  appeals. 

Both  parties  claim  title  under  Hannah  McTigue,  deceased; 
the  plaintiff  being  the  only  child  and  heir  of  the  said  Hannah, 
who  died  intestate;  and  the  defendant  the  surviving  husband  of 
the  said  Hannah,  and  the  father  of  the  plaintiff.  The  title  of 
the  said  Hannah  was  acquired  by  the  following  deed :  "This 
deed,  made  and  entered  into  this  12th  day  of  January,  1876, 
by  and  between  Adolphus  Meier  (widower),  of  the  city  of  St. 
Louis,  State  of  Missouri,  party  of  the  first  part,  and  James 
Halloran,  of  the  same  place,  ])arty  of  the  second  part,  and 
Hannah  McTigue,  wife  of  John  McTigue,  party  of  the  third 
part,  witnesseth  :  "  That  the  said  party  of  the  first  part  in  consid- 
eration of  the  sum  of  seven  hundred  dollars  to  him  in  hand 
paid  by  said  party  of  the  third  part,  the  receipt  of  which  is 
lioi  eby  acknowledged,  and  the  further  sum  of  one  dollar  to  him 
piid  by  the  said  party  of  the  second  part,  the  receipt  of  which 
IS  luMoby  also  acknowledged,  do  by  these  presents  grant,  bar- 
ija  II  and  sell  unto  the  said  [)arty  of  the  second  part  the  follow- 
ing described  lot  or  parcel  of  ground  being  and  laying  in  the 
county  of  St.  Louis,  State  of  Missouri,  to  wit:  Lot  numbered 
fourteen  in  block  No.  7,  Adolphus  Meier's  first  addition  to  the 
city  of  St.  Louis,  a  plat  of  which  is  on  file  in  theoffice  of  the 
recorder  of  deeds  for  St.  Louis  County,  said  lot  having  a  front 


62  ESTATES    ARISINO    OUT     OF    MARRIAGE. 

on  the  south  lino  of  Cozens  street  of  twenty-live  feet  by  :i  depth 
of  one  hunch-ed  and  twenty-three  feet  to  an  alU-y  (»f  fifteen  feet 
■wide;  to  have  and  to  hold  the    same,  with   all   tlie  rights,  privi- 
leo;cs  and  appurtenances  thereto  l)eloiiging  or  in   anywise  apper- 
taining, unto  him,  the  said  party  of  the  second   i)art,  his  heirs 
and  assigns  forever  ;  in  trust,  however,  to  and    for  the  sole  and 
separate  use,  benefit,  and  behoof  of  the  said  Hannah  McTigue. 
And  the  said  James  Halloran,  party  of  the   second  part,  hereby 
covenants  and  agrees  to    and    with    the    said    Hannah    McTigue 
that  he    will  suffer  and  permit  her,  without  let  or  molestation, 
to  have,  hold,  use,  occupy,  and  enjoy  the  aforesaid  premises, 
with  all  the  rents,  issues,  profits  and  proceeds  arising  therefrom, 
whether  from  sale  or   lease,  for  her  own  sole  use  and    benefit, 
separate  and  apart  from  her  said  husband,  and  wholly  free  from 
his  control  and  interference,  debts,  and  liabilities,  curtesy,  and 
all  other  interests  whatsoever,  and  that  he  will  at  any  time  and 
at  all  times  hereafter,  at  the  request  and  direction  of  said  Han- 
nah McTigue,  expressed  in  writing,  signed  by  her  or  by  her  au- 
thority, bargain,  sell,  mortgage,  convey,  lease,  rent,  convey  by 
deed    of  trust   for    any    purpose,  or   otherwise  dispose  of  said 
premises,  or  any  part  thereof,  to  do  which  full  power   is  hereby 
given,  and  will  pay  over  the  rents,  issues,  profits  and  ]>rocecds 
thereof  to  her,  the  said  Hannah  McTigue,  and  that  he  will,  at  the 
death  of  said  Hannah    McTigue,  convey  or  dispose  of  the  said 
premises,  or  such  part  thereof  as  may  then  be  held  by  him  under 
this  deed,  and  all  profits  and  proceeds  thereof,  in  such  manner 
to  such  person  or  persons,  and  at    such    time    or   times,  as  the 
said  Hannah  McTigue   shall  by  her  last  will  and  testament,  or 
any  other  writings  signed  by  her,  or  by  her  authority,  direct  or 
appoint;   and   the   said   Hannah   McTigue   shall  have    power   at 
any  time  hereafter,  whenever  she  shall  from  any  cause    deem   it 
necessary  or  expedient,  by  any  instrument  in  writing  under  her 
hand  and  seal,  and  by  her  acknowledged,  to  nominate,  and  ap- 
point a  trustee  or  trustees  in  the  place  and   stead   of    the   party 
of  the  second  part  above  named,  which  trustee  or  trustees,  or 
the  survivors  of  them,  or  the  heirs  of  such  survivors,  shall  hold 
the  said  real  estate   upon  the   same  trust    as   above    cited;   and 
upon  the  nomination  and  appointment  of  such  new  trustees   the 
estate  in  trust  hereby  vested  in  said   party  of    the   second   part 
shall  thereby   be    fully  transferred    and    vested    in   the   trustee 
or  trustees  so  appointed   by  the    said    Hannah   McTigue.     And 
the    said    Adolphus    Meier    hereby    covenants    to    warrant    and 
defend  the    title    to    the    said    real    estate    against    the    lawful 
claims   of    all    persons   whomsoever,  except    all    taxes,    special 
or  general,  for  the  year  1876;   and  the  said  party  of  the  second 


DOWKIt    WHEN    BARRED    BY    DIVORCF..  03 

part  covenants  faithfully  to  perform  and  fulfill  the  trust  herein 
created.  In  testimony  whereof  the  said  parties  have  hereunto 
set  theii'  hands  and  seals  tlie  day  and  the  year  iirst  above 
Aviitten."  The  plaintiff,  who  is  a  minor  suing  by  her  next  friend, 
the  said  James  Halloran,  trustee  in  said  deed,  claims  the  right  to 
the  possession  of  the  premises  as  the  only  child  and  heir  at  law 
of  her  mother.  The  defendant  is  in  possession,  and  has  been  ever 
since  the  death  of  his  wife,  and  claims  as  tenant  by  the  curtesy. 
There  can  be  no  doubt  that  by  the  terms  of  the  deed  an  equit- 
able estate  of  inheritance  was  vested  in  the  said  Hannah,  which, 
upon  her  death  intestate,  descended  to  the  plaintiff  as  her  only 
heir  at  law,  and  that  such  estate  was  her  sei)arate,  equital)le 
estate.  It  is  also  well-settled  law  in  this  State  that  the  husband 
is  entitled  to  curtesy  in  the  equitable  estate  of  the  wife  of  which 
she  died  seised,  although  such  estate  was  limited  to  her  separate 
use.  Alexander  v.  Warren,  17  Mo.  228  ;  Baker  v.  Nail,  59  Mo. 
265;  Tremmel  v.  Kleiboldt,  75  Mo.  255;  6  Mo.  App.  249  ;  Sol- 
tan  V.  Soltan,  93  Mo.  307  ;  6  8.  W.  Rep.  95  ;  Spencer  v.  O'Neill, 
100  Mo.  49;  12  S.  W.  Rep.  1054.  Such  seems  to  be  the  law 
generally  in  this  country,  except  in  those  States  where  the  estate 
of  curtesy  has  been  abolished  by  statute.  Tied.  Real  Prop.  (2d 
Ed.),  §  105.  And  while  *'  it  is  not  competent  at  common  law,  in 
the  grant  to  a  woman  of  an  estate  of  inheritance,  to  exclude  her 
husband  from  his  right  of  curtesy,  a  like  rule  does  not  prevail 
in  equity,  where  an  estate  may  be  so  limited  as  to  give  the  wife 
the  inheritance,  and  depiive  the  husband  of  curtesy,  if  the  intent 
of  the  devisor  or  settler  be  express."  1  Washb.  Real  Prop.  (5th 
Ed.),  p.  175,  §  15;  4  Amer.  &  Eng.  Enc.  Law,  p.  9(35,  note  3. 
As  such  was  the  evident  intention  expressed  in  the  foregoing 
deed,  the  defendant's  curtesy  was  barred,  and  the  judgment  of 
the  circuit  court  so  holding  is  affirmed.  All  concur,  except 
Barclay,  J.,  absent. 

SECTION   III. 

DOWER. 

Van  Cleaf  v.  Burns,  118  N.  Y.  549;  23  N.  E.  881. 

Hinchliffe  v.  Shea,  103  N.  Y.  153;  8  N.  E.477. 

McKaigg  V.  McKaigg,  50  N.  J.  Eq.  325;  25  S.  181. 

Jones  V.Fleming,  104  N.  Y.  418;   10  N.  E.  G93. 

Staiggv.  Atkinson,  144  Mass.  5G4;  12  N.  E.  354. 

Dower  When    Barred  by  Divorce. 

Van  Cleaf  v.  Burns,  118  N.  Y.  549;  23  N.  E.  881. 

Appeal    from    supreme    court,  general    term,  second  depart- 


64  ESTATES    AUISIN(}    OUT    OF    MARRIAGE. 

luent,  affirming    a    judgment   entt;ro(l   u[)()n  tlic  decision  of   the 
court  at  special  term. 

The  plaintiff  l)r()uglit  this  action  to  recover  dower  in  certain 
lands  situate  in  the  city  of  Brooklyn,  of  which  one  David  Van 
Cleaf,  deceased,  was  seised  while  he  was  her  husband.  She 
alleged  in  her  complaint  that  she  was  married  to  said  Van  Cleaf 
on  theGlh  of  .Tuly,  1875,  and  that  he  died  November  12,  1884  ; 
that  during  said  period  he  was  seised  and  possessed  of  the  prem- 
ises in  question,  and  that  the  defendants  are  in  possession  thereof, 
claiming  to  own  the  same.  Without  denying  any  of  said  allega- 
tions, the  defendant  Catherine  Burns  answered,  alleging  that  on 
the  9th  of  April,  1881,  said  David  Van  Cleaf,  who  was  then  a 
resident  of  the  State  of  Illinois,  was  duly  divorced  from  the 
plaintiff,  on  account  of  her  misconduct,  by  the  judgment  of  a 
court  in  that  State  which  had  jurisdiction  of  the  subject-matter 
and  of  the  parties.  The  trial  court  fonnd  the  following  facts; 
"  That  in  an  action  in  the  circuit  court  of  Cook  County,  III.,  in 
which  David  Van  Cleaf  was  plaintitf,  and  said  Mary  B.  Van 
Cleaf  was  defendant,  brought  ibr  a  divorce  and  dissolution  of 
the  marriage  i'or  the  cause  and  ground  that  said  Mary  B.  Van 
Cleaf  had  willfully  deserted  and  absented  herself  from  said  David 
Van  Cleaf,  her  husband,  without  any  reasonable  cause,  ibr  the 
space  of  more  than  two  years  before  the  commencement  of 
such  action,  which  by  the  laws  of  Illinois  was  a  ground 
for  absolute  divorce  and  dissolution  of  the  bond  of 
marriage,  such  proceedings  were  had  that  on  April 
9,  1891,  judgment  was  granted  and  perfected  therein 
in  favor  of  said  David  Van  Cleaf  against  said  Mary  B.  Van 
Cleaf,  dissolving  the  bond  of  marriage  between  them  for  the 
cause  and  ground  aforesaid,  which  cause  and  ground  was  by  said 
judgment  adjudged  to  exist.  That  said  court,  in  pronouncing 
said  judgment,  had  jurisdiction  of  the  subject-matter  of  the 
action  and  judgment,  and  of  the  parties  thereto.  That  said  David 
Van  Cleaf  was  at  the  time  of  said  action  and  judgment  domiciled 
in  Chicago,  in  the  State  of  Illinois;  and  said  Mary  B.  Nan  Cleaf, 
on  October  18,  1880,  appeared  in  said  action  in  person,  and  filed 
her  answer  in  writing  to  the  complaint,  having  just  received 
notice  of  the  commencement  of  the  suit  by  the  service  on  her  in 
this  State  of  the  summons  and  complaint.  That  the  plaintiff 
was  during  all  the  time  above  mentioned  a  resident  of  the  city 
of  Brooklyn,  in  the  State  of  New  York."  The  court  found,  as 
a  conclusion  of  law,  that  the  complaint  should  be  dismissed  upon 
the  merits,  with  costs,  to  which  the  plaintiff  duty  excepted. 
The  only  proof  given  by  either  party  on  the  trial  was  a  stipula- 
tion admitting  the  facts  as  found.     The  case  states  that  no  other 


DOWER    WHEN    BARRED    BY    CURTESY.  65 

facts  appeared;  and  llio  parties  stipulate,  for  the  purpose  of  any 
appeal,  tliat  David  Van  Cloaf  was  seised  in  fee-simple  of  the 
premises  in  question  between  the  date  of  his  marriage  to  the 
plaintiff  and  the  date  of  s;ii(l  divoree,  and  that  such  admission 
shall  have  the  same  effect  as  thougii  fonnd  by  the  trial  judge  upon 
proper  evidence. 

Vann,  J.  (after  staling  the  facts  as  above).  Our  Revised 
Statutes  provide  that  "  a  willow  .'•hall  be  endowed  of  the  third 
part  of  all  the  lands  whereof  her  husband  was  seised  of  an  estate 
of  inheritance  at  any  time  during  the  marriage  "  (1  Rev.  St.,  p. 
740,  §  1)  ;  but  that,  "  in  case  of  divorce  dissolving  the  marriage 
conti'act,  for  the  misconduct  of  the  wife,  she  shall  not  be 
endowed"  {Id.,  p.  741,  §  8).  It  is  further  provided  by  the 
Code  of  Civil  Procedure  that,  where  final  judgment  is  rendered 
dissolving  the  marriage  in  an  action  brought  by  the  wife,  her 
inchoate  right  of  dower  in  any  real  property  of  which  her  hus- 
band then  was,  or  was  theretofore,  seised,  shall  not  be  affected 
by  the  judgment  ;  but  that,  when  the  action  is  brought  i»y  the 
husband,  the  wife  shall  not  be  entitled  to  dower  in  any  of  his 
real  })roperty,  or  to  a  distributive  share  in  his  personal  property. 
Sections  1759,  17G0.  These  provisions  of  the  Code  replaced  a 
section  of  the  Revised  Statutes  which  provided  that  "  a  wife, 
being  a  defendant  in  suit  for  a  divorce  brought  by  her  husband, 
and  convicted  of  adultery,  shall  not  be  entitled  to  dower  in  her 
husband's  real  estate,  or  any  part  thereof,  nor  to  any  distrib- 
utive share  in  his  personal  estate."  3  Rev.  St.  (6th  Ed.),  p. 
157,  §  61,  repealed  Laws  1880,  c.  245,  §  1,  subd.  4.  An  absolute 
divorce  could  be  granted  only  on  account  of  adultery,  either  under 
the  Revised  Statutes  or  the'Codo.  3  Rev.  St.  (6th  Ed.),  p.  155, 
§§  38-42;  Coke  Civil  Proc.,§§  1756,  1761.  According  to  either, 
an  action  could  be  brought  to  annul,  tp  dissolve,  or  to  partially 
su8[)end  theo|)eration  of  the  marriage  contract.  A  marriage  may 
be  annulled  for  causes  existing  before  or  at  the  time  it  was  entered 
into;  and  the  decree,  in  such  cases,  destroys  the  conjugal  rela- 
tional initio,  and  operates  as  a  sentence  of  nullity.  Id.,  §§  1742, 
1754.  A  marriage  contract  may  be  dissolved,  and  an  absolute 
divorce,  or  a  divorce  i)roper,  granted  for  the  single  cause  already 
mentioned.  Such  a  judgment  o[)erates  from  the  date  of  the 
decree,  by  relieving  the  parties  from  the  obligations  of  the  mar- 
riage, although  the  paity  adjudged  to  be  guilty  is  forbidden  to 
remarry  until  the  death  of  the  other.  It  has  no  retroactive 
effect,  except  as  expressly  provided  by  statute.  Wait  v.  Wait, 
4  N.  Y.  95,  An  action  for  a  separation,  which  is  sometimes 
called  a  "  limited  divorce,"  neither  annuls  nor  dissolves  the  mar- 
riage contract,  but  simply   separates  the  parties  from  bed  and 

5 


66  ESTATES    ARISING    OUT    OF    MARRIAGE. 

board,  citlicr  poniiancntly  or  for  a  limited  time.  Code  Civil 
Proc,  §§  1762-1766.  Neither  the  nature  nor  effect  of  the  judg- 
ment of  divorce  ij^runted  by  tliccoiirt  in  Illinois  in  favor  of  David 
Van  Cleaf  against  the  })lainti(F  appears  in  the  record  before  us, 
excc))t  that  the  bond  of  marriage  between  them  is  stated  to  have 
been  dissolved  upon  the  ground  that  she  had  willfully  deserted 
and  absented  herself  from  her  husband,  without  reasonable  cause, 
for  the  space  of  more  than  two  years  prior  to  the  commence- 
ment of  the  action.  It  does  not  even  appear  that  the  decree 
would  have  the  effect  upon  her  right  to  dower  in  the  State 
where  it  was  rendered  that  is  claimed  for  it  here.  Appar- 
ently," it  simi)ly  dissolved  the  marriage  relation;  and  whether 
it  had  any  effect,  by  retroaction,  upon  property  rights  exist- 
ing at  its  date,  is  not  disclosed.  A  judgment  of  a  sister  State 
can  have  no  greater  effect  here  than  belongs  to  it  in  the  State 
where  it  was  rendered.  Suydani  v.  Barber,  18  N.  Y.  468. 
There  is  no  presumption  that  the  statutes  of  the  State  of  Illinois 
agree  with  our  owu  in  relation  to  this  subject.  Cutler  v. 
Wright,  22  N.  Y.  472;  McCulloch  v.  Norwood,  58  N.  Y.  562. 
If  they  do,  the  fact  should  have  been  proved,  as  our  courts  will 
not  take  judicial  notice  of  the  statutes  of  another  State.  Hos- 
ford  V.  Nichols,  1  Paige,  220;Chanoine  v.  Fowler,  3  Wend. 
173;  Sheldon  v.  Hopkins,  7  Wend.  435;  Whart.  Ev.,  §§  288, 
300.  Adequate  force  can  bo  given  to  the  Illinois  judgment,  by 
recognizing  its  effect  upon  the  status  of  the  parties  thereto, 
without  giving  it  the  effect  contended  for  by  the  respondent. 
Barrett  v.  Failing,  111  U.  S.  523  ;  4  Sup.  Ct.  Rep.  598  ;  Mans- 
field V.  Mclntyre,  10  Ohio,  27. 

The  judgment  appealed  from,  therefore,  can  be  affirmed  only 
upon  the  ground  that  a  decree  dissolving  the  marriage  tie,  ren- 
dered in  another  State,  for  a  cause  not  regarded  as  adequate  by 
our  law,  has  the  same  effect  upon  dower  rights  in  this  Slate  as 
if  it  had  been  rendered  by  our  own  courts  adjudging  the  party 
proceeded  against  guilty  of  adultery.  This  would  involve  as 
a  result  that  the  expression,  "  misconduct  of  the  wife,"  as  used 
in  the  Revised  Statutes,  means  any  misconduct,  however 
trifling,  that  by  the  law  of  any  State  is  ground  for  divorce. 
Thus  it  might  haj)pen  that  a  wife  who  resided  in  this  State, 
and  lived  in  strict  obedience  to  its  laws,  might  be  deprived 
of  her  right  to  dowei"  in  lands  in  this  State  by  a  foreign 
judgment  of  divorce,  ba-^ed  upon  an  act  that  was  not  a  violation 
of  any  law  of  the  State  of  her  residence.  It  is  important,  there- 
fore, to  determine  whether  the  piovision  that  a  wife  shall  not  be 
endowed  in  case  of  divorce  dissolving  the  marriage  contract  for 
her    misconduct   refers    only    to  that  act   which  is   misconduct 


DOWER    WHEN    BARRED    RY    DIVORCE.  67 

authoiizini;  a  divorce  in  tliis  State,  or  to  any  act  whicli  may  be 
tcniu'd  "  iDiscoiidiirt,"  and  converted  into  a  (raiise  of  divorce  by 
the  leeislature  of  any  State.  In  Sdiilfer  v.  Pruden,  64  N.  Y.  47, 
49,  this  court,  referrino;  to  said  provision  of  the  Revised  Statutes, 
said  that  "  the  misconduct  there  spoken  of  must  be  hor  adul- 
tery;  for  there  is  no  other  cause  for  a  divorce  dissolvins;  the 
nuirriage  contract."  It  had  before  said,  in  Pitts  v.  Pitts,  52  N. 
Y.  5D3,  that  "  a  wife  can  only  be  barred  of  dower  by  a  conviction 
of  adultery  in  an  action  for  divorce,  and  by  the  judgment  of  the 
court  in  such  action."  While  these  remarks  were  not  essential 
to  the  decision  of  the  cases  then  under  consideration,  they 
sujrgest  the  real  meaning  and  proper  application  of  the 
word  "  misconduct,"  as  used  in  the  Revised  Statutes,  with 
reference  to  its  effect  upon  dower.  When  the  legislature 
said,  in  the  chapter  relating  to  dower,  that  a  wife  should  not 
1)0  endowed  when  divorced  for  her  own  misconduct;  and,  in 
the  chapter  relating  to  divorce,  that  she  should  not  be  entitled 
to  dower  when  convicted  of  adultery  —  the  sole  ground  for  a 
divorce,  —  we  think  that,  by  misconduct,  adultery  only  was 
meant,  or  that  kind  of  misconduct  which  our  laws  recognize  as 
sufficient  to  authorize  a  divorce.  The  sections  relating  to  dower, 
and  to  Ihe  effect  of  divoice  upon  dower,  are  in  ]mri materia,  and 
should  be  construed  together  ;  and,  when  thus  construed,  they 
lead  to  the  result  already  indicated.  Beebe  v.  Estabrook,  79 
N.  Y.  246,  252.  The  repeal  of  section  48,  which  provided  that 
the  wife,  if  convicted  of  adultery,  should  not  be  entitled  to  dower, 
has  not  changed  the  result, as  sections  1759  and  1760  of  the  Code 
have  been  substituted,  leaving  the  law  unchanged.  They  enact 
in  effect,  that  when  judgment  is  rendered  at  the  suit  of  the  hus- 
band dissolving  the  marriage  for  the  adultery  of  the  wife,  she 
shall  nut  be  entitled  to  dower  in  any  of  his  real  property. 
There  is  no  change  in  meaning  :  and  the  slight  change  in  Ian- 
guage,  as  the  commissioners  of  revision  reported,  was  to  con- 
solidate and  harmonize  the  new  statute  with  the  existing 
system  of  procedure.  Throop  Anno.  Code,  §  1760,  note.  The 
repealed  section  was  pi'unounced  in  the  Ensign  Case,  103  N.  Y. 
284 ;  8  N.  E.  Rep.  544,  "  an  unnecessary  antl  superfluous 
provision  as  respects  dower."  It  was  also  held  in  that 
case  that  while  the  relation  of  husband  and  wife,  both 
actual  and  legal,  is  utterly  destroyed  by  a  judgment  of  divorce 
so  that  DO  fuluie  rights  can  thereafter  arise  from  it,  still  ex- 
isting rights,  already  vested,  are  not  thereby  forfeited,  and  are 
taken  away  by  only  special  enactment  as  a  punishment  for  wrong. 
It  follows  that  depriving  a  woman  of  her  right  to  dower  is  a 
punishment  for  a  wrongful  act  perpetrated  by  her.     Is  it  prob- 


08  DOWER    WHEN    IJAUliEl)    15Y    CONVEYANCE. 

able  tliiit  ll)C  logisl:itur(!  iiitoiidcd  to  ))iinihh  a.s  a  wrong  that  wliich 
it  had  not  dcchiied  to  he  wfong?  If  a  divorce  granted  in  another 
State  for  willful  desertion  rehites  back  so  as  to  affect,  by  way  of 
punishment,  ])roi)erty  rights  previou^-iy  acquired,  m\i>t  not  a 
divorce  for  incompatibility  of  temper,  or  any  other  frivolous 
reason,  be  attended  with  the  same  result?  Does  the  penalty  in- 
flicted upon  the  guilty  purty  to  a  divorce  granted  in  this  State 
for  a  singlo  and  special  reason  attach  to  any  judgment  for  divorce, 
granted  in  any  State  for  any  cause  whatever,  iniduvling,  as  is 
said  to  be  the  law  in  one  State,  the  mere  discretion  of  the  court? 
Our  conclusion  is  that  as  nothing  except  adultery  is,  in  this  State, 
regarded  as  misconduct  with  reference  to  the  subject  of  absolute 
divorce,  no  other  misconduct  is  here  permitted  to  deprive  a  wife 
of  dower,  even  if  it  is  the  basis  of  a  judgment  of  divorce  law- 
fully lendeied  in  another  State,  unless  it  expressly  appears  that 
such  judgment  has  that  effect  in  the  jurisdiction  where  it  was 
rendered,  and  as  to  that  we  express  no  opinion.  The  judgment 
should  be  reversed,  and  a  new  trial  granted,  with  costs  to  abide 
event.     All  concur,  excei)t  Follett,  C.  J.,  dissenting. 


Wife's  Renunciation   of  Dower  of    no    Effect,  if  Husband's 
Conveyauce  is  Invalidated  for  any  Purpose. 

Hinchliffe  v.  Shea,  103  N.  Y.  153;  8  N.  E.  477. 

Andrews,  J.  The  joinder  by  a  married  woman  with  her  hus- 
band in  a  deed  or  mortgage  of  his  lands  does  not  operate  as  to 
her  by  way  of  passing  an  estate,  but  inures  simply  as  a  release, 
to  the  grantee  of  the  husband,  of  her  future  contingent  right  of 
dower  in  the  granted  or  mortgaged  premises,  in  aid  of  the  title 
or  interest  conveyed  by  his  deed  or  mortgage.  Her  release 
attends  the  title  derived  from  the  husband,  and  concludes  her 
from  afterwards  claiming  dower  in  the  premises,  as  against  the 
grantee  or  mortgagee,  so  long  as  there  remains  a  subsisting  title 
or  interest  created  by  his  conveyance.  But  it  is  the  generally 
recognized  doctrine  that  when  the  husband's  deed  is  avoided,  or 
ceases  to  oi)erate,  as  when  it  is  set  aside  at  the  instance  of 
creditors,  or  is  defeated  by  a  sale  on  execution  under  a  prior 
judgment,  the  wife  is  restored  to  her  original  situation,  and 
may,  after  the  death  of  her  husband,  recover  dower  as  though 
she  had  never  joined  in  the  conveyance.  Robinson  v.  Bates,  3 
Mete.  40;  Malloney  v.  Horan,  49  N.  Y.  Ill;  Ketzmiller  v. 
Van  Rensselaer,  10  Ohio  St.  63  ;  Littlefield  v.  Crocker,  30  Me. 
192. 

In  short,  the  law  regards  the  act  of  the  wife   joining    in   the 


widow's  quarantine.  69 

deed  or  mortgage  not  us  an  ulionatiou  of  an  estate,  but  as  a 
rciiuuciatioii  of  her  inchoate  right  of  dower  in  favor  of  the 
grantee  or  mortgagee  of  her  liusband  in  and  of  the  title  or  inter- 
est created  by  bis  conveyance.  It  foUows,  therefore,  that  her 
act  in  joining  in  the  conveyance  becomes  a  nullity  wlienever  the 
title  or  intei'cst  lo  wiiich  tlio  renunciaiion  is  incident  is  itself 
defeated.  Sciiii.  Dower,  c.  12,  §  40.  The  wife's  deed  or 
mortgage  of  her  liu^l).in»rs  lands,  cannot  stand  independently  ol' 
the  deed  of  her  hiisl);ind,  when  not  executed  in  aid  thereof,  nor 
can  she  by  joining  with  her  hnsbaiid  in  a  deed  of  lands  to  a 
stranger,  in  which  she  has  a  contingent  right  of  dower,  but  in 
which  the  husband  has  no  present  interest,  bar  her  contingent 
right.     Marvin  v.  Smith,  4(j  N.  Y.  571. 

Tliese  principles  are,  we  think,  decisive  of  this  case.  The 
plaintiff's  mortgagee  has  been  defeated  by  the  paramount  title 
derived  under  the  execution  sale.  It  was  the  husband's  mort- 
gage, and  not  the  mortgage  of  the  wife,  except  for  the  limited 
and  special  pur[)ose  indicated.  The  lien  of  the  mortgage,  as  a 
charge  on  the  lands  of  the  husband  has,  by  the  execution  sale, 
been  subverted  and  destroyed  ;  nor  can  the  security  be  converted 
into  a  mortgage  of  the  widow's  dower,  now  consummate  by  the 
death  of  her  husband.  This  would  be  a  perversion  of  its  orig- 
inal purpose.  Her  act  in  signing  the  mortgage  became  a  nullity 
on  the  extinguishment  of  the  lien  on  the  husband's  lands.  If  on 
the  execution  sale  there  had  been  a  suiplus  ai)plicable  to  the 
mortsi'se,  it  mi^ht  very  well  be  held  that  the  widow  could  not  be 
endowed  therein,  except  after  the  mortgage  had  been  satisfied. 
The  surplus  would  represent  in  part  the  mortgaged  premises. 
See  Elmendorf  ?;.  Lockwood,  57  N.  Y.  322. 

We  think  the  authorities  require  a  reversal  of  the  judgment. 
Judgment  reversed,  and  the  complaint  dismissed  with  costs. 

(All  concur,  except  Miller,  J.,  absent.) 


Widow's  Quarantine. 

McKaig  V.  McKaig,  50  N.  J.  Eq.  325;   25  A.  - 

Pitney,  V.  C.  The  bill  is  by  a  brother  against  brothers  and 
sisters,  asking  lor  partition  of  land  which  descended  to  them 
from  their  father,  George  McKaig,  deceased.  There  is  no  dis- 
pute as  to  the  shares  in  which  the  land  is  held,  and  it  clearly 
tippeared  at  the  hearing  that  it  c<)uld  not  be  divided  without 
great  preju<lice,  and  so  there  must  be  a  sale.  The  bill  alleges 
that  Charles  P.  McKaig,  one  of  the  defendants,  has  been  in  the 
exclusive  possession,  and  has  enjoyed  the  rents  and  profits,  of 


70  ESTATES    ARISING    OUT    OF    MARRIAGE. 

the  premises  from  the  detith  of  the  father,  wliich  occurred  in 
Febiiuii'V,  1879,  iij)  to  the  spring  of  l<S8iS,  a  period  of  nine 
years,  and  liad  (hiring  that  time  cut  and  carried  away  therefrom, 
for  his  own  nso,  a  quantity  of  wood  and  timber ;  that  such 
possession  by  Charkss  was  had  by  virtue  of  an  agreement  or 
understanding  with  the  other  heirs  that  ho  should  pay  an  annual 
rent  of  $150  tlicrefor,  and  that  the  widow  of  George  JSIcKaig 
was  entitled,  as  dowress,  to  one-third  of  tlie  rents  .and  })rofits; 
and  it  prays  that  an  account  may  be  taken  of  such  rents  and 
profits,  and  Charles  be  decreed  to  ])ay  two-lhirds  of  the  same, 
or  that  the  same  may  be  deducted  from  his  share  of  the  pro- 
ceeds of  the  sale  of  the  land.  Charles  McKaig  only  has  answered, 
and  he  denies  that  he  ()ccupie<l  the  premises  under  any  agree- 
ment or  understanding  with  his  brothers  and  sisters,  but  alleges, 
in  substance,  that  he  entered  and  kept  possession  as  the  tenant 
of  the  widow,  who  was  entitled  to  such  possession  and  to  the 
rents  and  profits  until  her  dower  was  as-igncd  to  her,  which  was 
never  done. 

The  serious  and  important  question  in  the  case  is  whether  the 
widow  of  George  McKaig,  who  died  seised,  was  entitled  to  the 
exclusive  possession  and  use  of  the  premises  in  question  under 
the  second  section  of  the  dower  act  (Revision,  p.  320),  which 
enacts  that,  "until  such  dower  be 'assigned  to  her,  it  shall  be 
lawful  for  the  widow  to  remain  in  and  hold  and  enjoy  the  man- 
sion of  her  husband,  and  the  messuage  or  plantation  thereto 
belonging,  without  being  liabU;  to  pay  any  rent  for  the  same.  " 
The  facts  are  as  follows:  Tluj  widcnv,  Sarah  McKaig,  owned  in 
her  own  right  a  farm,  upon  which  w  is  a  dwelling  and  the  ordi- 
nary outbuildings,  and  in  and  upon  which  she  res  detl  with  her 
husband  for  many  3'eais  before  and  id  the  time  of  his  death. 
This  was  their  only  home  and  mansicm.  Immediately  adjoining 
this  farm  of  the  wife  —  the  dividing  line  running  near  the  build- 
ings—  were  situate  the  lands  in  que-tion,  belonging  to  (he  hus- 
band. They  comprised  plow,  meadow,  and  wood  land,  the 
proportion  of  plow  laud  being  small,  and  containing  148  aci'cs 
in  three  parcels  of  98,  33,  and  17  acres,  respectively,  of  which, 
howi'ver,  only  the  larger  one  adjoined  the  wife's  farm.  The 
husband  worked  and  used  these  lands  in  common  with  his  wife's 
hinds,  making  no  distinction.  There  was  no  dwelling  or  other 
buildings  u[)on  them. 

The  question  is,  was  th(?  widow  entitled  toquarantine  in  them? 
I  can  find  no  judicial  expression  or  decision  on  the  point.  The 
indu-try  of  counsel  was  unable  to  cite  any.  Nevertheless,  I 
think  the  question  reasonably  free  from  doubt.  There  is  here 
no  "  mansion  house  of  the  husband,"  and  without  it  I  am  unable 


widow's   quarantine.  71 

to  perceive  how  there  can  be  any  statutory  quarantine.  It  is  the 
messuaire  or  plantation  belonging  "thereto," — that  is,  to  the 
mansion  house  of  the  husband,  —  of  wliich  the  widow  is  given  the 
exclusive  right  until  her  dower  is  assigned.  The  statute  does 
not  give  her  such  right  in  the  messu;ige  and  plantation  of  her 
husband  belonfrinjr  to  and  used  with  her  own  mansion.  The 
words  "  belonging  to,"  as  here  used,  clearly  indicate  uniformity 
of  title,  as  well  as  contiguity  of  location  and  community  of  use. 
The  right  given  by  this  enactment  is  greater  than  that  enjoyed 
at  the  common  law.  It  is  not  a  declaration  of  what  the  law  was, 
but  a  decided  change  in  it  ;  and,  while  our  courts  have  manifested 
a  disposition  to  construe  this  section  favorably  towards  the 
widow,  I  can  find  in  such  disposition  no  warrant  for  changing 
what  seems  to  me  to  be  the  plain  meaning  of  the  language  used. 
I  think  the  widow  was  not  entitled  to  the  exclusive  use  of  these 
lands,  iind  hence  that  the  son,  who  was  in  possession,  must 
account  for  two-thirds  of  the  rents  and  profits. 

With  regard  to  the  amount  of  rents  and  profits,  the  proof 
shows  that  the  defendant  Charles  moved  into  the  mansion  house 
with  his  mother  immediately  after  his  father's  death.  His 
mother  was  far  advanced  in  years,  and  infirm,  and  was,  besides, 
at  the  time,  quite  ill  from  some  temporary  disorder,  from  which, 
however,  she  so  far  recovered  as  to  live  eight  or  nine  years. 
The  complainant  and  his  brothers  and  sisters  other  than  Charles 
understood  and  supposed,  and  there  was  evidence  tending  to 
show,  that  Charles  entered  under  an  agreement  and  under- 
standing that  he  was  to  pay  rent  at  the  rate  of  $150  per  year 
for  the  whole  farm,  including  both  the  parts  belonging  to  his 
mother  and  that  belonging  to  his  father,  and  that  the  same 
should  be  applied  to  the  support  of  his  mother  during  her  life  ; 
in  other  wards,  that  he  was  to  support  his  mother  for  the  use  of 
both  farms,  and  his  brothers  and  sisters  supposed  that  this  was 
the  arrangement  until  after  the  mother's  death,  when,  to  their 
surprise,  Charles  made  a  claim  against  her  estate  for  a  hirge 
sum  ( $1,314),  for  her  supi)ort  and  maintenance  from  her 
husband's  death,  and  this  claim,  after  litigation  in  the  orphan's 
court,  was  sustained,  and  Charles  received  payment  therefor 
without  any  allowance  for  the  use  of  either  farm.  This  result 
could  only  have  been  arrived  at  on  the  ground  that  the  ar- 
rangement and  understanding  upon  which  the  other  heirs 
supposed  that  Charles  was  occupying  these  premises  had  no 
leiral  existence,  and  the  heirs  are  therefore  free  to  de- 
mand  an  account  of  the  rents  and  profits  in  this  suit. 
Much  evidence  was  given  as  to  the  annual  value  of  the 
land    here    involved.       It    would    be    profitless    to    discuss     it. 


72  ESTATES    ARISING    OUT   OF    MARRIAGE. 

The  amount  involved  is  trifling,  iiud  I  will  simply  state  the 
result  at  which  I  have  aariveil.  I  find  the  value  of  the  use 
of  the  land  here  in  qu(?stion  to  he  $3(5  a  year  over  and 
above  taxes,  and  the  defendant  nuist  account  for  two-tliirds 
of  that  sum,  or  $24  a  year  for  nine  years,  making  $21G.  The 
wood  cut  by  him  I  tincl  to  be  worth  $25.  He  should  pay  inter- 
est on  these  sums  from  April  1,  1888.  The  defendants  did  not 
set  up  the  st:itute  of  limitations,  I  think  the  defendants,  other 
than  the  complainant,  thongh  they  have  not  answered  or  tiled 
cross  bills  arc  entitled  to  the  benetit  of  this  adjndicatiou,  although, 
strictly  speaking,  made  only  upon  complainant's  prayer.  The 
practice  in  partition  cases  does  not  require  that  each  party  should 
assert  his  rights  by  a  sei)arate  [)leading.  To  require  them  to  do 
so  would  greatly  increase  the  cost  of  the  proceedings. 


Assignment  of  Dower  Against  Common   Right. 

Joues  V.  Fleming,  104  N.  Y.  418;   10  N.  E.  693. 

Earl,  J.  The  plaintiff  commenced  this  action  to  recover 
dower  in  certain  lands  mentioned  in  the  complaint,  as  the  widow 
of  eJames  Jones,  deceased,  against  his  children  and  heirs  at  law. 
The  defendants  interposed  as  a  defense  to  the  action  that,  at  the 
time  of  plaintiff's  marriage  with  Jones,  she  had  another  husband 
living,  and  also  that  she  had  released,  and  agreed  to  release,  any 
dower  right  that  she  had  in  the  land.  Upon  the  trial  before  the 
referee  a[)pointed  to  hear  and  determine  the  action,  it  appeared 
that  the  plaintiff  was  married  to  one  Firth  in  1855;  that  she 
lived  with  him  as  her  husband  until  18G1,  when  they  broke  up 
housekeeping,  and  never  thereafter  lived  together;  that  in  Octo- 
ber, 1875,  claiming  that  Firth  had  absented  himself  from  her 
more  than  five  successive  years,  without  being  known  to  her  to 
be  living  during  all  that  time,  she  niarried  Jones  ;  and  that  he 
died  on  the  28th  day  of  October,  1880,  seised  of  the  lands  in 
which  she  claims  dower. 

The  defendants  gave  evidence  tending  to  show  that  Firth  had 
not  absented  himself,  within  the  meaning  of  the  statute  (3  Rev. 
St.  [7th  Ed.]  2332,  §  6),  for  five  successive  years,  and  claimed 
that  her  marriage  with  Jones  was  therefore  null  and  void. 
They  also  offered  to  prove  certain  proceedings  instituted  in  the 
Supreme  Court  in  1877  for  the  [)urposo  of  having  Jones  declared 
a  lunatic,  and  for  the  a[)[)()intment  of  a  committee  of  his  [)erson 
and  estate.  The  records  of  those  proceedings  show  that  the 
jury  summoned  for  that  purpose  found  him  to  be  a  lunatic  since 
the  fifteenth  day  of  June,  1877,  and  incapable  of  government 


'   ASSIGNMENT    AGAINST    COMMON    RIGHT.  73 

of  himself  and  the  maniigeinont  of  his  estate;  that  there  was  a 
final  Older  entered  Fcbrnary  9,  1878,  confirming  the  inquisition 
of  the  jury,  and  ai)|)()inting  William  H.  Miller  committee  of  the 
person  and  estate  of  Jones;  and  that  the  committee  qualified 
by  giving  the  requisite  bond,  'i'lie  records  in  those  proceedings 
were  objected  to  l)y  the  plaintiff's  counsel  as  incompetent  and 
immaterial  and  were  excluded  by  the  referee.  The  defendants 
also  oll'eied  iu  evidence  a  petition  dated  February  15,  1878,  by 
Miller,  the  committee,  addressed  to  the  Snpreme  Court,  which 
alleged,  among  other  things,  that  while  Jont^s  was  a  lunatic  he 
was  induced  by  the  plaintiff  to  deliver  to  her  bonds,  notes  and 
other  choses  in  action  amounting  in  the  aggregate  to  $9,000; 
that  she  aflerwaitis  tiansl'erred  and  delivered  some  portions  of 
the  propertv  to  divers  other  persons;  and  that  she  had  delivered 
between  $500  and  $1,000  of  such  property  to  one  Leavitt  who 
then  held  the  same  ;  and  he  prayed  for  an  order  authorizing 
him  to  commence  an  action  against  the  plaintiff  to  annul  her 
marriage  with  Jones,  and  also  actions  against  her  and  Leavitt  and 
other  persons  who  might  have  any  of  the  personal  property  of 
Jones  in  their  possession  to  recover  the  same.  They  also  offered 
in  evidence  an  order  of  the  Supreme  Court  made  February  25, 
1878,  authorizing  the  commencement  by  the  committee  of  the 
suits  mentioned  in  the  petition  ;  a  summons  and  complaint  in 
an  action  wherein  Jones,  by  his  committee,  was  plaintiff, 
and  this  plaintiff  was  defendant,  to  annul  her  marriage  with 
Jones;  the  answer  of  the  defendant  in  that  action  ;  a  summons 
and  complaint  in  the  Supreme  Court  in  an  action  by  Jones,  by 
Miller  as  committee,  against  the  present  plaintiff,  commenced 
March  1,  1878,  which  complaint,  among  other  things,  alleged 
that  Jones  was  the  owner  of  personal  property  of  the  value  of 
about  $3,000 ;  that  his  committee  was  entitled  to  the  possession 
of  the  property,  and  that  she  declined  to  deliver  the  property  to 
the  committee,  and  unlawfully  detained  the  same  from  him,  and 
demanded  judgment  for  the  recovery  of  the  property  ;  also  the 
defendant's  answer  in  that  action,  in  which  she  admitted  that  she 
had  possession  of  the  property,  but  alleged  that  it  had  been 
given  to  her  by  Jones,  and  that  she  was  the  owner  thereof;  also 
a  summons  and  complaint  in  an  action  in  the  Supreme  Court  by 
Miller,  as  committee  of  Jones,  against  Leavitt,  commenced 
March  15,  1878,  which  complaint  alleged  that  Jones  was  the 
owner  of  jiersonal  i)ropcrty  of  the  value  of  $500,  which  the  com- 
mittee was  entitled  to  the  possession  of,  and  that  Leavitt  had 
converted  the  same,  and  demanded  judgment  for  the  value 
thereof  ;  also  the  answer  of  Leavitt,  which  admitted  that  he  had 
possession  of  the  property,  but  alleged  that  the  same    had   been 


74  ESTATES    ARISING    OUT    OF    MARRIAGE. 

delivered  to  him  by  Mrs.  Jones,  and  that  she  vviis  the  owner 
thereof;  also  a  sunimonH  and  complaint  in  an  action  in  the 
Supreme  Court,  by  Miller,  as  committee  ot  Jones,  a<^ainst  one 
Standriui^,  commenced  Marcli  15,  1878,  which  complaint  alleged 
that  Jones  was  the  owner  of  personal  property  of  the  value  of 
about  $4,0(*0,  which  the  committee  was  entitled  to  the  i)osses8ion 
of,  that  Standring  had  possession  of  the  same,  and  declined  and 
lofused  to  deliver  the  same  to  the  committee,  and  it  demanded 
judgment  for  the  recovery  of  the  pro[)erty  ;  and  also  the  answer 
of  Standring,  in  which  he  alleges  that  the  pioperty  had  been  left 
with  him  by  Mrs.  Jones  for  safekeeping,  and  that  the  same  was 
owned  by  her.  The  plaintiff  objected  to  all  the  evidence  thus 
offered  as  incompetent  and  immaterial,  and  the  referee  sustained 
the  objection. 

The  defendants  then  offered  in  evidonce  an  agreement  dated 
January  28,  1880,  between  the  plaintiff,  of  the  one  part,  and 
Ida  V.  Fleming,  Ellen  A.  Van  Ness,  and  Julia  E.  Zoller,  de- 
scribed as  the  only  children  and  prospective  heirs  of  James  Jones, 
a  lunatic,  and  William  H.  Miller,  a  committee  of  the  other  part, 
which  recited  and  stated  as  follows;  "  That,  whereas,  four  suits 
.have  been  commenced  and  are  now  pending  in  the  Supreme 
Court,  brought  by  said  committee  against  the  party  of  the  tirst 
part,  Mrs.  Jones,  and  against  persons  representing  her  claims, 
as  follows,  to  wit,  [here  the  suits  above  mentioned  are  described] 
it  having  been  this  day  agreed  between  the  parties  that  all  of  the 
said  actions  be  discontinued,  and  the  same  having  been  discon- 
tinued, the  said  committee  and  said  three  daughters  of  James 
Jones  have  stipulated  and  agreed  tiiat  of  the  properly  involved 
in  said  suits  the  sum  of  $3,400  shall  be  released  to  and  is  hereby 
delivered  to  said  Gazena  C.  .Tones,  the  receipt  whereof  is  hereby 
confessed  and  acknowledged,  and  a  general  settlement  being 
made  this  day  between  all  the  parties  hereto,  now,  therefore,  in 
consideration  of  the  premises,  and  of  the  said  $3,400  duly  paid 
to  me,  I  hereby  release,  transfer,  assign,  and  set  over  to  the  said 
committee,  and  said  three  daughters  of  said  James  Jones,  all  my 
right,  title,  and  interest,  including  my  inchoate  right  of  dower 
(if  any  such  exists),  of,  in,  and  to  any  and  all  real  estate  that 
said  James  Jones  had  on  the  twelfth  day  of  October,  1875,  or 
that  he  has  since  acquired,  and  also  of,  in,  and  to  all  his 
personal  estate,  and  of,  in,  and  to  any  personal  estate 
he  may  own  at  his  death;  the  intent  being  to  release  all  right, 
inchoate  or  otherwise,  that  I  have  or  may  have  in  the  estate 
of  said  James  Jones;  and  in  consideration  of  the  premises,  and 
of  the  said  $3,400,  hereby  covenant  and  agree  to  and  with  said 
committee,  and  the  three  daughters  of  said  James  Jones  before 


ASSIGNMKNT    AGAINST    C03IM0N    RIGHT.  75 

named,  that  at  any  future  time,  on  deinand  of  the  parties  thereto, 
I  will  execute  and  deliver  such  further  or  other  deeds,  releases, 
or  transfers  as  may  be  ncccssaiy  to  i)erfect  this  arranL'ement, 
and  carry  out  the  intention  of  the  })arties  thereto,  namely,  the 
full  and  perfect  release  of  all  my  inchoate  or  other  rights  in  the 
property  of  said  James  Jones;  and  I  hereby  relinquish  to  said 
Miller,  the  committee,  all  rights  that  I  now  have,  as  the  com- 
mittee of  the  j)('r>on  of  the  said  Jones,  and  agree  to  give  full 
possession  of  the  house  and  premises  where  I  now  am,  on  Mon- 
day, Februai-y  2,  1880."  This  was  signed  by  Mrs.  Jones,  and 
acknowledged  on  the  same  day.  The  defendants  also  offered  in 
evidence  a  quitclaim  deed  dated  and  acknowledged  on  the  same 
day  from  plaiutiif  to  the  three  children  and  to  Mrs.  Miller,  the 
committee,  in  which  she  released  to  them  all  her  right,  title, 
and  interest  in  and  to  all  the  personal  property  of  Jones  that 
came  into  her  possession  at  any  time  prior  to  the  date  of  the  iu- 
strnnK'nt,exce[)t such  articles  as  were  brought  to  Jones'  house  by 
her,  or  bought  with  her  own  money  ;  and  she  released,  assigned, 
and  transferred  to  them,  and  their  heirs  and  assigns,  all  the  in- 
terest which  she  had,  or  might  hereafter  have,  including  any 
inchoate  right  of  dower  in  any  land  to  which  Jones  had  title; 
and  she  also  released  to  the  parties  of  the  second  part  any  con- 
tingent interest  in  any  personal  estate  which  Jones  might  own  at 
his  death  ;  and  she  covenanted  with  the  parties  of  the  second 
part  not  to  make  any  claim  therefor  on  the  death  of  Jones,  and 
that  she  would  in  the  future,  on  demand  of  any  one  interested, 
make  such  further  deeds,  conveyances,  or  transfers  as  might  be 
necessary  to  carry  out  the  true  intent  and  object  of  the  parties, 
namely,  to  release  all  right,  inchoate  or  otherwise,  which  she 
had  or  might  have  in  any  property  which  Jones  might  have  at 
the  time  of  his  death ;  and  she  acknowledged  that  the  instru- 
ment was  made  as  a  part  of  the  general  settlement  which  ap- 
peared by  the  agreement  bearing  even  date  with  the  deed,  and 
signed  by  her.  She  also  agreed  to  give  up  the  possession  of  the 
house  on  and  before  the  Monday  following,  together  with  all 
appurtenances  thereto  belonging.  The  defendant  then  offered 
in  evidence  a  stipulation  of  the  respective  attorneys  in  the 
four  actions  mentioned  in  the  agreement,  discontmuing  the 
same,  without  costs,  as  against  each  other,  also  dated  Janu- 
ary 28,  1878.  The  plaintiff'  objected  to  the  agreement,  the 
deed,  and  stipulation  as  immaterial  and  incompetent,  and 
the  referee  sustained  the  objection,  and  excluded  the  evi- 
dence. 

The    defendants  then  offered  to  prove   that,  after    the    time 
specified  in  the   inquisition   that  Jones  became    a   lunatic,   the 


7(5  ESTATES    ARISING    OUT    OP   MARRIAGE. 

plaintiff  wrongfully  obtained  from  him  over  $7,000  worth  of 
personal  property,  a  portion  of  which  sho  transferred  to  Stand- 
ring  and  Leavitt;  that  an  action  was  brought  against  her  in  the 
name  of  Jones  by  his  committee  to  set  aside  her  marriage  with 
Jones;  that  actions  were  also  brought  by  the  committee  of  Jones 
against  her,  Standring,  and  Leavitt,  to  recover  the  personal  prop- 
erty so  obtained  by  her  from  Jones;  that,  during  the  i)endency 
of  those  actions,  a  settlement  was  made  between  Miller,  the 
committee  of  Jones,  and  all  of  the  children  and  pros[)ectivo 
heirs  of  Jones,  and  the  present  plaintiff,  whereby  such  actions 
were  all  discontinued,  and  Miller,  as  such  committee  of  Jones, 
and  the  children  and  prospective  heirs  of  Jones,  paid  to  the 
plaintiff  $3,400,  which  constituted  upward  of  one-third  of  the 
real  and  personal  propert}'  of  Jones  ;  that  the  i)Iaintiff,  in  con- 
sideration of  the  same,  executed  and  delivered  the  releases  and 
agreements  before  offered  in  evidence,  and  delivered  the  custody 
of  Jones  to  the  committee,  and  thereafter  never  lived  with  him  ; 
that  Jones  never  recovered,  and  died  intestate;  and  that,  at  the 
time  the  plaintiff  obtained  possession  of  the  persomd  property, 
he  was  in  fact  a  lunatic.  The  plaintiff  objected  to  this  evidence 
as  immaterial  and  incompetent,  and  upon  other  grounds.  The 
referee  sustained  the  objections,  and  excluded  the  evidence. 

The  defendants  then  i)ffered  to  prove  that  Jula  E.  Zoller,  one 
of  the  original  defendants,  since  deceased,  after  the  settlement 
before  mentioned,  took  charge  of  Jones,  her  father,  and  cared 
for  and  supported  him  until  his  death,  on  the  faith  of  the  settle- 
ment. This  evidence  was  also  objected  to,  and  the  objection 
was  sustained  by  the  referee. 

In  his  report  the  referee  found  that  the  plaintiff's  marriage 
with  Jones  was  valid,  and  that  she  was  entitled  to  dower  in  his 
estate,  and  judgment  was  entered  in  her  favor  upon  such  report, 
which,  upon  appeal  to  the  general  term,  was  affirmed. 

Whether  the  first  husband  of  the  plaintiff  absented  himself, 
without  being  known  to  her,  for  five  successive  years,  within  the 
meaning  of  the  statute,  and  whether,  assuming  that  he  did  so 
absent  himself,  and  the  plaintiff  was  thus  lawfully  married  to 
Jones,  she  became  entitled  to  dower  in  his  real  estate,  her  first 
husband  being  alive  at  the  time  of  Jones'  death,  we  do  not  deem 
it  important  to  determine,  as  there  are  other  plain  reasons  which 
constrain  us  to  hold  that  this  most  inequitable  claim  for  dower 
should  be  defeated.  It  is  provided  in  the  Revised  Statutes  (3 
Uvv.  St.  [7th  Ed.]  2198,  §  12)  that  "  if,  before  her  coverture, 
but  without  her  assent,  or  if,  after  her  coverture,  lands  shall  be 
given  or  assured  for  the  jointure  of  a  wife,  or  a  pecuniary  pro- 
vision be  made  for  her  in  lieu  of  dower,  she  shall  make  her  elec- 


ASSIGNMENT   AGAINST   f^OMMON    RIGHT.  77 

tion  whether  she  will  lake  such  joint ur<^  or  pecuniary  provision, 
or  whether  she  will  ))e  endowed  of  the  hinds  of  her  husband,  hut 
she  siiall  not  bo  eutilied  to  both."  ^ 

We  must  assume  that  the  facts  which  the  defendants  offered 
to  prove  were  true,  and  must  dispose  of  the  case  on  that  basis. 
There  was,  therefore,  wiHiin  the  moaning  of  this  section,  a 
pecuniary  piovision  of  $3,400  for  the  plaintiff  in  lieu  of  her 
dower.  Wliile  it  was  not  made  by  her  husband,  it  was  in  his 
behalf,  by  his  committee  and  children.  No  one  has  questioned 
that  it  was  legally  made,  and  while  she  holds  the  property,  she 
caiHiot  allege  that  it  was  not  effectually  made.  This  section 
does  not  in  terms  relate  to  a  provision  to  take  effect  at  the  hus- 
band's death.  Previous  to  the  married  woman's  acts  a  pecuniary 
})rovision  in  lieu  of  dower  could,  during  coverture,  be  made  for 
a  wife  through  the  intervention  of  trustees,  to  take  effect  during 
the  life  of  husband  or  at  his  death.  The  property  could  be 
placed  in  the  hands  of  trustees,  so  that  she  could  have  the  ben- 
efit and  enjoyment  of  it  during  the  coverture,  or  her  enjoyment 
of  it  could  be  postponed  until  after  her  husband's  death  ;  and  in 
either  event  it  cannot  be  doubted  that  the  provisions  made  came 
within  purview  of  that  statute.  Since  those  acts  the  property 
constituting  the  provision  under  this  section  may  be  transferred 
or  secured  to  the  wife  as  her  se[)arato  estate;  and  whether  the 
possession  and  control  of  the  pioperty  be  at  once  given  to  her, 
or  be  postponed  until  her  husband's  death,  it  is  still  in  every 
sense  a  provision  within  the  meaning  of  this  section. 

If,  by  the  word  "  provision,"  the  law-makeis  meant  a  suitable 
portion  of  the  husband's  estate,  or  a  suitable  provision  for 
the  n)aintenance  of  the  wife,  or  a  provision  to  operate  at  the 
husband's  death,  then  all  the  three  conditions  are  complied  with 
in  this  case.  This  provision  was  a  suitable  portion  of  the  hus- 
band's estate,  the  property  was  placed  in  the  al)solute  control  of 
the  wife,  and  hence  could  be  used  for  her  suppoit  and  main- 
tenance, and  must  have  been  so  intended  ;  and,  as  it  was  given 
to  her  in  the  form  of  choses  in  action  but  a  few  months  before 
her  husband's  death,  it  may  be  presumed  that  she  had  it  at  his 
death. 

The  two  following  sections  of  the  Revised  Statutes  must  also 
be  noticed.  Section  13  provides  that  "  if  lands  be  devised  to  a 
woman,  or  a  pecuniary  or  other  provision  be  made  for  her  by 
will  in  lieu  of  her  dower,  she  shall  make  her  election  whether 
she  will  take  the  lands  so  devised,  or  the  provision  so  made,  or 
whether  she  will  be  endowed  of  the  lands  of  her  husband." 
Section  14  provides  that  "  when  a  woman  shall  be 
entitled     to     an     election     under     either     of     the      two     last 


78  ESTATES    ARISING   OUT    OP   MARRIAGE. 

sections,  she  shall  be  deemed  to  have  elected  to  take  such  joint- 
ure, devise,  or  pccuuiiiry  piovisioii,  unless  within  one  your  after 
the  death  of  her  iuisband  she  sliall  enter  on  the  lands  to  be  assigned 
to  her  for  her  dower,  or  commence  [)roceedings  for  the  recovery 
or  assignment  thereof."  Under  these  sections  tlie  widow  may 
make  her  election  at  any  time  within  one  year;  and  if  she  does 
not  elect  to  take  her  dower  within  one  year,  she  will  be  deemed 
to  have  elected  the  provision  made  for  her  in  lieu  of  dower. 
But  she  may  elect  to  taUe  the  provision  at  any  time,  and,  when 
she  has  doue  so,  her  right  to  dower  is  barred.  Here  the  plain- 
tiff kept  the  pecuniary  provision  made  for  her,  has  never  offered 
to  return  it,  still  has  it,  and  must  therefore  be  deemed  to  have 
elected  to  take  and  keep  it  in  lieu  of  dower.  She  cannot  have 
both  the  provision  and  dower;  and  therefore,  when  she  began 
this  action  within  less  than  two  months  after  her  husband's 
death,  she  had  already  made  her  election,  and  he  right  to  dower 
was  gone. 

But  there  is  still  another  reason  for  barring  })laintiff's  claim 
to  dower.  While,  under  the  decisions  of  this  State,  the  agree- 
ment and  deed  of  January  28,  1880,  could  not  operate  as  a  pres- 
ent release  of  the  plaintiff's  inchoate  right  of  dower,  yet  she  was 
competent  to  enter  into  the  agreement  to  execute  a  valid  release 
of  her  dower  after  her  husband's  death.  That  agreement  was 
based  upon  an  adequate  consideration.  Three  suits  were  pend- 
ing which  related  to  what  she  claimed  to  be  her  separate  estate, 
and  they  were  settled  and  discontinued,  and  choses  in  action 
valued  at  $3,400  were  transferred  to  and  received  by  her  as  her 
separate  estate.  Her  agreement  was  therefore  one  by  which  she 
received  a  separate  estate,  and  related  thereto,  and  therefore  was 
binding  upon  her  under  the  married  woman's  acts,  as  has  been 
frequently  held  in  this  and  other  courts  of  this  State.  Prevot  v. 
Lawrence,  51  N.  Y.  219;  Herrington  v.  Robertson,  71  N.  Y. 
280;  Cashman  v.  Henrv,  75  N.  Y.  103  ;  Tiemeyer  v.  Turnquist, 
85  N.  Y.  516;  Ackley  v.  Westervelt,  86  N.  Y.  448.  She 
received  the  choses  in  action  in  consideration  of  her  agree- 
ment to  release  to  these  defendants  her  right  of  dower 
after  the  death  of  her  husband,  and  her  agreement  was 
like  the  promise  of  a  married  woman  to  pay  for  prop- 
erty which  she  purchases  for  her  own  use,  or  adds  to  her  sepa- 
rate estate.  It  is  an  immaterial  circumstance  that  the  defend- 
ants did  not  then  own  the  land  in  which  dower  is  now  claimed, 
or  the  property  which  was  transferred  to  her.  They  expected  to 
be  interested  in  the  land  as  the  heirs  of  their  father,  and  were 
perfectly  competent  to  make  a  contract  for  the  benefit  of  the 
land  at  a  future  time  when  their  interest  should  actually  come 


TESTAMENTARY   PROVISION    IN    LIEU    OF    DOWEK.  79 

into  existence.  So,  too,  wliilo  they  did  not  actually  own  the 
personal  property,  they  weie  so  situated  that  they  were  able  to 
procure  a  settlement  of  the  suits,  and  the  transfer  of  the  [)ro[)- 
erty  to  her;  and  so,  even  if  the  consideration  was  not  at  the 
time  detrimental  to  them,  it  was  beneficial  to  her,  and  ample  to 
sustain  her  agreement  based  thereon.  Certainly,  so  long  as  she 
retains  the  consideration  which  the  defendants  aided  in  securing 
to  her,  she  cannot  repudiate  the  agreement  for  which  the 
consideration  was  furnished. 

Wo  know  of  no  reason  why  such  an  agreement  should  not  be 
enforced  because  it  relates  to  dower,  then  inchoate,  but  expected 
to  be  com[)Iete  at  the  death  of  the  husband,  when  the  agreement 
was  to  be  performed.  Such  an  agreement  is  condemned  by  no 
public  policy.  A  married  woman  may  bar  her  right  to  dower 
by  a  proper  ante-nuptial  or  post-nuptial  agreement,  by  accepting 
a  provision  made  for  her  in  a  will,  or  by  joining  her  husband  in 
the  conveyance  of  land  in  which  her  right  of  dower  is  inchoate. 
It  is  the  policy  of  the  law  that  a  wife  shall  not  bo  deprived  of 
her  dower  except  by  her  own  consent;  but  it  leaves  her  absolute 
freedom,  in  all  the  ways  above  mentioned,  to  bar  her  dower  at 
her  own  will  and  pleasure. 

The  defendants,  in  their  answer,  among  other  things,  demanded 
for  relief  specific  performance  by  the  plaintiff  of  her  agreement 
to  release  her  dower ;  and  if  the  evidence  erroneously  excluded 
by  the  referee  had  l)een  received,  they  would,  if  necessary  for 
their  protection,  have  been  entitled  to  such  relief. 

Our  conclusion,  therefore,  is  that  the  judgment  should  be 
reversed,  and  a  new  trial  granted;   costs  to  abide  the  event. 

All  concur. 


Lex    Loci    Rei  Sitae    Governs    Effect  of  Testamentary  Pro- 
visions in  Lieu  of    Dower. 

Staigg  V.  Atkinson,  144  Mass.  564;  12  N.  E.  354. 

Holmes,  J.  This  is  an  action  brought  by  a  widow  to  re- 
cover one-third  of  the  proceeds  of  land  in  Minnesota,  formerly 
belonging  to  her  husband,  and  sold  without  prejudice.  The 
defense  is  that  she  is  barred  by  having  accepted  the  provisions 
of  her  husband's  will.  The  husband  made  a  will  while  domi- 
ciled in  Rhode  Island,  providing  for  the  plaintiff,  but  not 
declaring  the  provision  to  be  in  lieu  of  dower,  and  then  changed 
his  domicile  to  Massachusetts,  where  he  died.  If  he  had  died 
domiciled  in  Rhode  Island,  and  the  land  had  been  situated  there, 
the  provisions  of  the  will  would  not  have  prevented  the  plaintiff 


80  ESTATES   ARISING   OUT   OF    MARRIAGE. 

from  recovering  dower;  and  it  has  been  decided,  in  a  case 
between  the  same  parties,  that  the  change  of  domicile  did  not 
aflect  her  rijjht  in  Rhode  Lshind  land.  Atkinson  v.  8laiiri!:»  13 
R.  I.  725.  If  he  had  been  domiciled  and  had  m.ide  his  will  in 
Minnesota,  the  pliiintiff  would  have  been  entitled  by  statute  to 
the  one-third  which  she  claims  ;  and,  as  there  is  no  statute  to 
the  contrary,  the  provisions  of  the  will  would  not  have  put  her 
to  an  election.  Gen.  Laws  Minn.  1875,  c.  40;  In  re  Gotzian, 
34  Minn.  159,  163,  164;  24  N.  W.  Rep.  920;  Reed  v.  Dicker- 
man,  12  Pick.  146,  149;  Ellis  v.  Lewis,  3  Hare,  310.  If, 
finally,  the  land  had  been  situated  in  Massachusetts,  and  the 
will  executed  there,  the  plaintiff  would  have  been  compelled  to 
elect  between  her  dower  and  the  will.  Pub.  St.  c.  127,  §  20; 
St.  1861,  c.  164,  §  1.  So  far  there  is  no  dispute  between  the 
parties. 

On  the  foregoing  statement,  it  is  obvious  that  the  defendant 
cannot  prevail,  unless  the  rule  which  would  govern  if  the  land 
lay  here  also  governs  the  present  case.  It  is  contented  that 
that  rule  does  govern,  on  the  ground  that  the  Massachusetts 
statute  is  a  statute  of  construction,  reading  a  claim  of  universal 
application  into  the  will,  to  the  effect  that  the  provision  made 
for  the  widow  is  in  lieu  of  dower,  or  substituted  statutory 
interests  in  all  lands,  wherever  situated,  that  the  will  is  to  be 
construed  by  the  law  of  the  domicile  of  the  testator  at  the  time 
of  his  death,  and  that  if  the  will,  so  construed,  makes  an 
acceptance  of  its  provisions  a  waiver  of  dower,  etc.,  the  law  ©f 
Minnesota  would  enforce  the  election  made  bv  such  acceptance. 
Washburn  v.  Van  Steenwyk,  32  Minn.  339^  20  N.  W.  Rep. 
324. 

But  we  cannot  admit  that  a  rule  of  construction,  properly  so 
called,  not  known  to  the  law  of  the  party's  domicile  when  he 
made  his  will,  is  necessarily  to  be  imported  into  it  by  reason  of  his 
dying  domiciled  elsewhere.  For  purposes  of  construction  it  is 
always  legitimate  to  consider  the  time  when  and  the  circum- 
stances in  which  the  will  was  made,  and  we  think  the  law  under 
which  it  was  made  was  one  of  those  circumstances.  We  are 
speaking  only  with  reference  to  a  case  like  the  on.e  before  us, 
not  to  a  question  like  that  in  Harrison  v.  Nixon,  9  Pet.  483,  504. 
The  testator  was  at  liberty  to  make  his  gift  to  his  wife  in  lieu 
of  or  in  addition  to  dower,  as  he  saw  fit.  Which  it  should  be, 
he  had  to  consider,  if  he  ever  considered  it,  when  he  drew  his 
will.  He  drew  his  will  under  a  system  by  which  the  gift  was  in 
addition  to  dower  unless  he  expressed  the  contrary,  and  he  did 
not  express  the  contrary.  We  are  at  a  loss  to  see  why  his 
words  should  be  held  to  acquire  a  new  meaning  upon  his  moving 


TESTAMENTARY  PROVISION  IN    LIEU    OF    DOWER.  81 

into  a  State  where  testamentary  gifts  are  in  lieu  of  dower  unless 
shown  to  l)e  in  addition  to  it.  Atkinson  v.  Staigg,  ubi  supra; 
Holmes  V.  Holmes,  1  Russ.  &  M.  660. 

In  view  of  our  construction  of  the  Massachusetts  statute,  it  is 
not  necessary  to  consider  what  was  the  effect  of  moving  into 
Massachusetts  with  regard  to  Massachusetts  land.  The  plaintiff 
has  never  made  any  chiim  u[)()n  it.  See  Shannon  v.  While,  109 
Mass.  146.  Neither  need  we  pass  upon  the  plaintiff's  argument 
that  the  general  laws  of  Minnesota  should  be  accepted  here  as 
determining  the  constrnction  of  the  will,  so  far  as  concerns  the 
effect  of  accepting  its  provisions  upon  the  plaintiff's  right  to 
Minnesota  land.  It  would  follow  from  that  argument  that  the 
plaintiff  would  have  been  barred  of  her  dower  in  the  Massa- 
chusetts land  even  if  the  testator  had  not  moved  from  Rhode 
Island. 

The  case  of  Jennings  v.  Jennings,  21  Ohio  St.  56,  relied  on 
by  both  sides,  was  the  case  of  a  West  Virginia  will  giving  the 
wife  certain  interests  in  land  in  Ohio,  and  it  was  intimated  that 
with  regard  to  Ohio  lands  she  was  put  to  her  election  between 
the  will  and  her  dower,  although  West  Virginia  preserved  the 
common  law  rule  allowing  her  to  claim  dower  in  addition  to  what 
was  given  by  the  will.  We  understand  this  case  to  go  on  the 
ground  that  the  law  of  the  place  of  the  land  given  to  the  widow 
by  the  will  was  to  determine  whether  she  was  pnt  to  an  election 
or  not,  at  least  wiih  n^gard  to  land  in  the  same  jurisdiction, 
claimed  outside  the  will.  Thus  construed,  the  case  helps  neither 
party.  The  case  of  Washburn  v.  Van  Steenwyk,  32  Minn.  336, 
20  N.  W.  Rep.  324,  which  was  put  in  evidence,  is  opposed  to 
the  plaintiff's  contention.  See  Van  Steenwyckv.  Washburn,  59 
Wis.  483,  510  ;   17  N.  W.  Rep.  289. 

But  we  need  not  pursue  this  branch  of  the  case  further, 
because,  in  our  opinion,  the  Massachusetts  statute  does  not  pur- 
port to  aff'ect  lands  outside  of  the  State  either  by  way  of  con- 
struction or  otherwise.  The  language  of  Pub.  St.,  c.  127,  §  20, 
is  as  follows:  "A  widow  shall  not  be  entitled  to  her  dower  in 
addition  to  the  piovisions  of  her  deceased  husband's  will,  unless 
such  plainly  ai)pears  to  have  been  the  intention  of  the  testator." 
In  St.  1861,  c.  164,  §  1,  the  language  is  :  "  If  she  makes  no  such 
waiver,  she  shall  not  be  endowed  of  his  lands,  unless  it  plainly 
appears  by  the  will  to  have  been  the  intention  of  the  testator 
that  she  should  have  such  provisions  in  addition  to  her  dowero" 
Both  of  these  acts  in  form  are  directed  at  dower,  not  at  the  con- 
struction of  wills.  The  statute  gives  the  widow  dower  (Pub. 
St.,  c.  124,  §  3;  Rev.  St.,c.  60,  §  1),  and  allow  her  six  months  in 
which  to  waive  the  provisions  nuide  for  her  by  the  will  (Pub. 

e 


82  ESTATES    ARISING    OUT    OF    MARRIAGE. 

St.,  c.  127,  §  18;  St.  1861,0.  104,  §  1;  Rev.  St.  c.  00,  §  11). 
Tlicy  then  go  on  to  s:iy  tluit  she  cannot  have  her  dower  unless 
she  waives  the  will,  hut  add  that  tiie  husband  may  make  his 
houuty  an  addition  to  her  dower  if  he  sees  fit.  No  douF)t  the 
statute  was  intended  to  change  the  common-hiw  rule.  But  tlie 
fact  that  it  approaches  the  subject  from  the  side  of  dower,  and 
not  from  the  side  of  the  will,  shows  that  it  was  only  intended  lo 
o[)erate  with  regard  to  Massachusetts  lands,  whethtn*  described  as 
a  statute  of  construction  or  as  a  statute  relating  to  dower.  Of 
course,  Massachusetts  would  not  attempt  to  legislate  concerning 
dower  in  another  State.  Taking  the  view  which  we  have  ex- 
pressed, we  have  not  considered  whether  the  satutory  one-third 
in  fee  given  by  the  law  of  Minnesota  would  be  included  under 
the  word  "  dower  "  in  our  statute. 

It  was  suggested  for  the  defendant  that  the  widow  could  not 
claim  under  the  will  in  one  jurisdiction,  and  against  it  in  another. 
But,  on  one  construction  of  the  will  and  the  Massachusetts  stat- 
tute,  she  does  not  claim  against  the  will  by  claiming  her  third 
of  the  Minnesota  land  outside  of  it. 

We  are  of  opinion  that  the  plaintiff's  interest  is  bound  to  con- 
tril)ute  to  the  pay^ient  of  debts  secured  by  mortgage  upon  the 
Massachusetts  lands.  By  the  old  law  until  changed  in  England 
by  St.  17  and  18  Vict.,  c.  113,  if  other  land  was  charged  with  the 
payment  of  debts,  it  had  to  exonerate  land  which  the  testator 
had  mortgaged.  And  this  rule  was  not  based  upon  the  fact  that 
the  devise  of  the  mortgaged  land  was  specific,  as  it  would  have 
been  even  if  residuary,  or  upon  any  notion  of  the  intention  to  be 
drawn  from  the  will.  Undoubtedly,  land  not  passing  by  the  will, 
but  acquired  and  mortgaged  after  the  will  was  drawn,  would  have 
been  exonerated.  The  rule  was  put  upon  the  ground  that  the 
debt  was  a  general  debt,  like  any  other,  and  the  mortgaged  land 
only  a  security,  and  therefore  that  the  funds  liable  for  general 
debts  must  pay  it.  Bartholomew  v.  May,  1  Atk.  487;  Tweedale 
V.  Coventry,  1  Brown  Ch.  240;  Serle  v.  St.  Eloy,  2  P.  Wms. 
386;  Hewes  v.  Dehon,  3  Gray,  205,  207;  Plimpton  v.  Fuller, 
11  Allen,  139.  It  followed  that,  when  other  land  and  the  mort- 
gaged land  were  both  cliarged  together,  they  were  held  to  con- 
tribute ratably  (Carter  v.  Barnadiston,  1  P.  Wms.  505;  Middle- 
ton  V.  Middleton,  15  Beav.  450;  Harper  v.  Munday,  7  De  Gex, 
M.  &  G.  369) ;  and  the  same  principle  would  apply  when  all  the 
lands  aie  charged  by  statute,  instead  of  by  will. 

By  the  Minnesota  statute,  the  plaintiff's  interest  is  "  subject, 
in  its  just  proportion,  with  the  other  real  estate,  to  the  payment 
of  such  debts  of  the  deceased  as  are  not  paid  from  the  personal 
estate;  "  so  that,  apart  from  the  will,  the  plaintiff's  one-third 


WIDOW    MAY    CLAIM    HOMESTEAD    AND    DOWER.  83 

would  stand  no  belter  than  the  other  two-thirds.  Taking  into 
account  this  and  the  general  course  of  lei^ishition  whicli  makes 
land  liable  for  debts,  we  think  that  it  wouhl  be  too  artiiicial  to 
interpret  the  testator's  general  direction  to  pay  debts  as  intlicat- 
ing  an  intent  to  charge  the  interests  passing  by  the  will  in 
exoneration  of  the  j)laintiff's  one-third,  even  as  against  resjduaiy 
devisees.  Hewes  v.  Dohon,  uhi  supra.  See  Hairis  v.  Watkins, 
Kay,  438.  Although  we  assume  that  the  residuary  devise  was 
not  specific,  so  far  as  it  alfected  the  Minnesota  land,  as  it  was 
not  with  regard  to  the  land  in  Massachusetts  (Blaney  v.  Blaney, 
1  Cush.  107;  Thayer  v.  Wellington,  9  Allen,  283,  296),  the 
plaintiff  prevails  upon  a  somewhat  technical  principle,  and 
hardly  can  complain  if  she  is  held  to  stand  upon  the  footing  on 
which  the  Minnesota  statute  meant  to  put  her. 
Judgment  for  plaintiff  for  $2,205.69. 


SECTION  IV. 
HOMESTEAD. 


Warren  t'.  Warren,  148  111.  641;  36  N.  E.  611. 
Ingels  V.  Ingels,  50  Kan.  755;  32  P.  387. 

Widow  May  Claim  Both  Homestead   and  Dower. 

Warren  v.  Warren,  148  111.  641;  36  N.  E.  611. 

The  original  bill  in  this  case  was  filed  on  September  24,  1890, 
by  the  appellant,  Eliza  A.  Warren,  the  widow  of  Alpha  Warren, 
who  died  testate  on  November  12,  1888,  against  John  H. 
Warren  in  his  own  right  as  a  son  of  Alpha  A.  Warren  by 
a  former  wife,  and  as  executor  of  the  will  of  said  Alpha 
Warren.  Appellant  was  married  to  Alpha  Warren  on  June  15, 
1875,  and  was  at  that  time  a  widow  having  a  daughter  by  a 
former  husband,  but  never  had  any  childien  by  Alpha  Warren, 
his  only  child  being  said  John  H.  Warren.  After  answer 
filed,  the  bill  was  amended  by  making  the  children  of  John 
H.  Warren  defendants.  Subsequently,  on  October  4,  1892, 
a  supplemental  bill  was  filed  by  ap[)ellant  against  said  John 
H.  Warren  and  his  children.  The  questions  in  the  case 
arise  upon  the  issues  made  by  the  answers  to  the  supple- 
mental bill  and  the  replications  to  such  answers.  The  sup- 
plemental bill  prays  for  an  allotment  of  dower  and  home- 
stead, for    an    accounting   by    the    trustee  and    executor,  for  a 


84  ESTATES    ARISING    OUT    OF    IMARRIAQE. 

disallowance  of  certain  payments  niade  hy  him  for  special  assess- 
ments and  special  taxes  levied  against  real  })roj)erty  of  the  estate 
in  Rockford,  for  removal  of  the  trustee,  and  for  general  relief, 
etc.  The  answers  deny  that  complainant  is  entitled  to  any  of 
the  relief  asked  f'^)r,  and  set  up  release  and  settlement  by  lier, 
ajjd  payment  to  her  and  receipt  l>y  her  of  one-third  of  the  balance 
of  the  rents  and  interests  given  to  her  by  the  will,  etc.  The 
decree  of  the  circuit  court  finds  that  the  will  of  Alpha  Warren 
was  admitted  to  probate  on  November  15,  1888;  that  John  H. 
Warien  entered  upon  the  duties  of  executor  and  trustee  there- 
under ;  that  complamant  affirmed  said  will,  and  did  not  relinquish 
any  of  the  provisions  tlieieof,  and  is  not  entitled  to  either  dower 
or  homestead  in  the  lands  of  her  deceased  husband;  that  the 
personal  estate  has  been  and  will  be  exhausted  in  payment  of 
widow's  award,  claims  allowed  and  the  compensation  of  the 
trustee  to  be  allowed;  that  since  the  testator's  death  the  city 
of  Eockford  has  carried  on  proceedings  by  special  assessment 
for  the  improvement  of  public  streets  and  the  construction  of 
public  sewers;  that  such  assessments  against  the  lands  of  the 
testator  amount  to  $1,441;  that  complainant  has  been  wrong- 
fully charged  with  one-third  thereof,  to  wit,  $480.33;  that 
under  the  will  she  is  only  charged  with  one-third  of  the  ordinary 
taxes  and  repairs.  The  decree  orders  that  John  H.  Warren, 
pay  to  complainant  said  sum  of  $480.33,  with  5  per  cent  interest, 
and  certain  costs,  within  40  days,  etc.,  and  have  execution 
therefor,  and  that  the  question  of  the  executor's  compensation 
be  reserved,  etc. 

The  will  of  Alpha  Warren  appoints  his  son  his  "  executor  to 
settle  and  manage  my  estate,  and  also  my  trustee,  to  hold  and 
keep  my  estate  intact  during  his  natural  lifetime;  "  and,  after 
providing  for  the  payment  of  debts  and  funeral  expenses  out  of 
the  personal  property,  it  proceeds  as  follows  :  "  I  direct  that 
the  annual  income  of  my  estate,  personal  and  real,  shall  be  used 
as  follows  :  *'  My  executor  and  trustee  shall  be  entitled  to  and 
shall  receive  a  reasonable  compensation  for  his  services.  The 
annual  taxes  and  insurance,  and  also  all  reasonable  repairs  and 
improvements,  shall  be  provided  for  out  of  the  annual  rents 
and  interests ;  and  of  the  annual  income  not  used  for  the 
purposes  above  named,  one-third  shall  belong  to  my  wife, 
Eliza  A.  Warren,  during  her  natural  life,  and  also  a  suit- 
able house  for  her  residence  during  the  same  period ;  and 
two-thirds  of  the  above  named  income  shall  belong  to  my 
son,  John  Henry  Warren,  for  the  support  of  himself  and 
family  during  his  natural  life.  At  the  decease  of  my  wife, 
Eliza  A.   Warren,  the  one-third  of  income  belonging  to  her  as 


WIDOW    MAY    CLAIM    HOMESTEAD    AND    DOWER.  85 

dowery  sliall  revert  to  my  estate  for  the  benefit  of  my  lawful 
heirs.  Subject  to  the  direction  and  control  of  the  said  John  H. 
Warren,  the  trustee  of  my  estate,  and  after  the  decease  of  both 
my  wife,  Eliza  A.  Warren,  and  of  my  son,  John  H.  Warren, 
then  my  entire  estate  shall  helong  in  equal  values  to  the  children 
of  John  H.  Warren  who  shall  survive  liim  ;  said  sum  to  be  held 
in  trust  lor  each  one  until  he  or  she  shall  be  twenty-one  years  of 
age.  My  executors,  after  consulting  with  the  probate  judge, 
and  both  judge  and  executor  shall  decide  that  a  sale  or  exchange 
of  any  of  my  real  estate  in  the  city  of  Rockford  will  benefit  my 
heirs  interested  in  said  estate,  such  sale  or  exchange  and  rein- 
vestment may  be  made  with  the  approval  of  the  probate  court, 
but  not  otherwise.  And  my  son,  John  H.  Warren,  and  my 
wife,  Eliza  A.  Warren,  shall  not  be  required  to  pay  rent  for  the 
use  of  the  re>idence  that  they  shall  occupy  which  shall  be 
suitable  for  their  respective  families,  but  they  are  not  to 
occupy  the  doul)le  houses  that  are  arranged  for  different 
families  at  one  and  the  same  time  as  tenants."  On  Novem- 
ber 27,  1888,  a})i)ellant  executed  under  her  hand  and  seal  an 
instrument  by  which,  in  consideration  of  the  payment  and 
approval  of  the  award  allowed  her  on  that  day,  and  for  other 
goods  and  valuable  considerations,  she  agreed  with  those  inter- 
ested in  the  estate  as  follows:  ♦'  Fust.  I,  widow  of  said  de- 
ceased, do  hereby  covenant  and  agree  to  accept  the  legacy  and 
interest  given  in  and  by  the  last  will  of  said  deceased,  ujy 
award,  and  the  claim  of  $200  filed  by  me  in  said  estate,  in  full 
of  all  claim  to  or  right  or  interest  in  the  estate,  real,  personal, 
or  mixed,  of  said  deceased,  of  every  name  and  nature;  and  any 
other  interest  is  hereby  expressly  waived  and  released  to  said 
estate."  The  appellant  did  not  renounce  the  provisions  of  the 
will  within  one  year  after  letters  testamentary  were  issued. 
During  December,  1888,  and  in  each  month  in  the  years  1889, 
1890,  1891,  and  1892,  she  has  received  moneys  from  the  trustee 
and  executor  out  of  the  income  of  the  estate.  She  was  paid  her 
widow's  award,  about  $1,200,  and  the  claim  of  $200  against  the 
estate,  which  is  above  referred  to. 

N.  C.  Warner,  for  appellant.  J.  C.  Garver  and  A.  E.  Fisher, 
for  appellees. 

Magruder,  J.  (after  stating  the  facts).  The  first  ques- 
tion arising  upon  the  assignment  of  error  is  whether  or  not 
the  aj)pellant  is  entitled  to  have  dower  assigned  to  her  in 
the  lands  of  her  deceased  husband.  Sections  10  and  11  of 
the  present  dower  act,  which  was  approved  on  March  4, 
1874,  and  went  into  force  on  July  1,  1874,  are  as  fol- 
lows:  (10)  <' Any    devise    of   land,  or   estate   therein,  or  any 


86  ESTATES    ARISING    OUT    OF    MARRIAGE. 

other  provision  made  by  the  will  of  ti  deceased  husband  or  wife 
for  a  surviviiiii;  wife  or  husband,  shall,  unless  othcrwi.se  ex- 
pressed in  the  will,  bur  the  dower  of  such  survivor  in  the  lands 
of  tlio  deceased,  unless  such  survivor  shall  elect  to  and  does 
renounce  the  benefit  of  such  devise  or  other  provision,  in  which 
case  ho  or  she  shall  bo  entitled  to  dower  in  the  lands  and  to 
one-third  of  the  personal  estate  after  the  payment  of  all 
debts."  (11)  "  Anyone  entitled  to  an  election  under  either  of 
the  two  preceding  sections  shall  be  deemed  to  have  elected  to 
take  such  jointure,  devise  or  other  provision,  unless,  within  one 
year  after  letters  testamentary  of  administration  are  issued,  he 
or  she  shall  deliver  or  transmit  to  the  county  court  of  the  proper 
county  a  written  renunciation  of  such  jointure,  devise  or  other 
provision."  Section  13  prescribes  the  form  of  renunciation,  by 
the  terms  of  which  the  surviving  husband  or  wife  does  thereby 
*'  renounce  and  quitclaim  all  claim  to  the  benefit  of  any  *  *  * 
devise  or  other  provision  made  to  me  by  the  last  will  and  tes- 
tament of  the  said  *  *  *  and  I  do  elect  to  take  in  lieu 
thereof  my  dower  and  legal  share  in  the  estate  of  the 
said  *  *  *."  As  the  appellant  did  not  renounce  the  pro- 
visions of  the  will  within  one  year  after  letters  testamentary 
were  issued  to  the  executor  of  Alpha  Warren's  estate,  it  would 
seem  to  be  clear  that  she  had  elected  to  take  under  the  will,  and 
that  she  is  not  entitled  to  an  assignment  of  dower  in  the  testator's 
land  under  the  decisions  of  this  court.  Cowdrey  v.  Hitchcock, 
103  111.202;  Stunzv.  Stunz,  131  III.  210;  23  N.  E.  407  ;  Cribben 
V.  Cribben,  136  III.  601) ;  27  N.  E.  70. 

It  is  contended  by  counsel  for  appellant  that  the  acceptance 
by  the  widow  of  the  provision  made  for  her  in  the  will  will  not 
bar  her  dower,  unless  such  provisions  shall  be  a  reasonably 
adequate  compensation  for  the  loss  of  what  she  would  have  been 
entitled  to  under  the  statute  if  there  had  been  no  will.  This 
contention  is  based  upon  the  decision  of  the  circuit  court  of 
the  United  States  for  the  seventh  circuit  in  the  case  of  U.  S. 
V.  Duncan,  4  McLean,  99;  Fed.  Cas.  No.  15,002,  where  a  liberal 
construction  was  given  to  section  39,  and  40  of  the  act  of  this 
State  in  regard  to  wills  in  force  in  1829  (Rev.  Laws,  1833,  p. 
624).  But  a  comparison  of  sections  39  and  40  of  the  act  of 
1829  with  sections  10  and  11  of  the  act  of  1874  will  show 
that  the  phraseology  of  the  former  is  different  from  the 
phraseology  of  the  latter.  By  the  terms  of  said  section  11, 
if  the  surviving  husband  or  wife  fails  to  renounce  within  the 
year,  he  or  she  shall  be  deemed  to  have  elected  to  take  the 
provision  given  by  the  will.  The  directions  of  the  statute 
are  explicit,  and  a  compliance    with   them    can  work  no  harm 


WIDOW    MAY    CLAIM    HOMESTEAD    AND    DOWEK.  87 

to  any  of  the  p-irtics  conccrDcd.  Section  10  directs  that 
the  devise  or  other  provision  m:ide  by  the  will  shall  be  a 
bar  to  dower  "  unless  otherwise  expressed  in  the  will."  If, 
therefore,  a  husband  desires  to  make,  in  his  will,  a  provision  for 
his  wife,  which  shall  not  operate  as  a  bar  to  her  dower,  he  can 
therein  stale  that  such  t)rovisi()n  is  not  to  he  in  lieu  of  dower,  in 
which  case  she  will  take  both  her  dower  and  what  is  devised  or 
bequeathed  to  her.  If  the  widow  deems  such  devise  or  bequest 
an  adequate  compensation  for  dower,  she  can  file  her  renuncia- 
tion within  the  time  specified,  and  thereby  take  what  she  is 
entitled  to  under  the  statute. 

In  the  present  case,  however,  we  are  not  satisfied  that  the 
provision  made  for  thq  appellant  by  the  will  is  not  a  reasonably 
adequate  compensation  for  her  dower,  if  the  doctrine  of  the 
Duncan  case  should  be  held  to  be  applicable.  It  is  conceded 
that  the  personal  estate  of  the  deceased  testator  has  been 
exhausted  in  the  payment  of  the  debts  and  expenses  of  adminis- 
tration, and  that  no  personal  property  would  have  passed  to 
appellant  if  her  husband  had  died  intestate.  All  that  she  could 
have  received  in  any  event  was  dower  in  the  lands.  All 
that  her  dower,  when  assigned  and  set  off,  would  amount 
to  would  be  the  rio:ht  to  use  the  one-third  in  value  of  her 
husband's  lands,  and  draw  the  rents  and  profits  thereof,  dur- 
ing her  life.  The  will,  by  directing  that  one-third  of  the 
annual  rents  and  interest,  after  deducting  certain  expendi- 
tures, shall  belong  to  her,  gives  her  what  is  substantially  equiv- 
alent to  the  value  of  her  dower  in  the  real  estate.  Counsel 
refer  us  to  a  number  of  cases  which  hold  that  the  wife  cannot  be 
deprived  of  her  dower  by  a  testamentary  disposition  in  her 
favor,  so  as  to  put  her  to  her  election,  unless  the  testator  has 
declared  the  same  to  be  in  lieu  of  dower,  either  in  express  words 
or  by  necessary  implication.  Under  the  rule  laid  down  in  most 
of  these  cases,  the  testator  will  not  be  presumed  to  have 
intended  the  provision  in  this  will  to  be  a  substitute  for  dower, 
unless  the  claim  of  dower  would  be  inconsistent  with  the  will,  or 
so  repugnant  to  its  provisions  as  to  disturb  and  defeat  them. 
Adsit  V.  Adsit,  2  Johns.  Ch.  448;  Smith  v.  Keniskern,  4  Johns. 
Ch.  9  ;  Wood  v.  Wood,  5  Paige,  595  ;  Fuller  v.  Yates,  8  Paige, 
325;  Church  v.  Bull,  2  Denio,  430.  The  decisions  referred  Ik 
will  be  found,  upon  examination,  to  have  been  rendered  in  tho 
absence  of  such  statutory  provisions  as  exist  in  this  State,  an>i 
such  decisions  are  consequently  inapplicable  to  the  case  at  bar. 
The  great  object  in  construing  the  wills  which  the  courts  there 
had  under  consideration,  was  to  ascertain  the  intention  of  the 
testator    upon  the  question    whether    or  not    the    testamentary 


88  ESTATES    AUISINO    OUT    OF    MAIIRIAGE. 

disposition  was  to  be  taken  in  lieu  of  dower.  Even  in  the  Dun- 
can Case,  SKprtif  tlie  reasoning  of  the  court  jiroceeds  largely 
uj)on  the  ground  tiiat  the  testator  will  not  be  ])resunied  to  have 
intended  his  boqiu'st  or  devise  to  be  a  substitute  for  dower  if  its 
amount  or  value  is,  to  a  very  considerable  extent,  less  tlum  the 
amount  or  value  of  the  dower.  But  under  the  peculiar  terms 
of  the  Illinois  statute,  the  provision  in  the  will  is  declared  to  be 
a  bar,  unless  the  inlentioa  that  it  shall  not  be  a  bar  is  expressed 
in  the  will.  The  statute  makes  the  silence  of  the  testator  the 
conclusive  index  to  his  intention,  and  it  also  makes  the  failure 
to  renounce  within  a  specified  time  conclusive  evidence  that 
the  surviving  husband  or  wife  has  elected  to  take  under  the 
will. 

We  think,  however,  that  if  the  rules  laid  down  in  the  author- 
ities relied  upon  are  applied  to  the  interpretation  of  the  will  in 
this  case,  there  will  be  disclosed  an  intention  to  make  the  testa- 
mentary provisions  a  substitute  for  dower,  and  not  a  gift  in 
addition  to  it.  Alpha  Warren  drew  his  own  will,  and  he  therein 
designates  the  portion  of  the  "  annual  rents  and  interest "  given 
to  his  wife  as  "  one-third  of  income  belono-inaj  to  her  as  dower." 
If  the  one-third  of  the  income  specified  in  the  will  was  to  be  her 
dower  or  *'  dowery,"  he  could  not  have  intended  that  she  should 
have  another  dower  outside  of  and  in  addition  to  that  given  by 
the  will.  Again,  after  directing  that  oue-third  of  his  net  annual 
income  shall  belong  to  his  wife,  he  directs  that  the  other  two- 
thirds  thereof  shall  belong  to  his  son,  John  H.  Warren.  If  the 
wife  was  to  have  dower  besides  the  third  of  the  income  given 
her  by  the  will,  the  son  could  not  take  the  two-thirds  of  the 
income  therein  devised  to  him.  The  widow,  in  such  case,  would 
virtually  have  two-thirds,  and  only  one-third  would  be  left  for 
the  son.  It  follows  that  the  claim  of  dower  on  the  part  of  the 
widow  is  inconsistent  with  the  provisions  made  for  the  sou  in 
the  will,  and  so  repugnant  to  them  that,  if  allowed,  it  would 
defeat  them.  A  case  might  arise  where  the  widow,  in  accepting 
the  testamentary  disposition,  acted  without  full  knowledge  and 
understanding  of  her  true  situation  and  rights,  and  of  the  conse- 
quence of  her  acceptance.  4  Kent  Comm.,  p.  58.  It  might 
then  be  necessary  to  determine  whether  the  lapse  of  more  than 
a  year  without  renunciation  would  cut  her  off  from  the  privilege 
of  making  her  election.  U.  S.  v.  Duncan,  supra;  Cowdrey  v. 
Hitchcock,  siqjra.  But  here  it  appears  that  the  widow  was 
correctly  advised  as  to  her  testamentary  rights  and  her  statu- 
tory rights  and  the  value  of  the  one  as  compared  with  the 
other. 

Counsel  further  insists,  that  the  dower  of  the  appellant  is  not 


WIDOW    MAY    CLAIM    HOMESTEAD    AND    DOWER.  89 

barred  because  the  devise  is  not  to  the  wife,  but  to  the  executor 
ill  trust  for  her  benefit.  Under  the  English  statute  of  uses  a 
jointure  was  not  avaihible  to  bar  the  widow's  dower,  unless  the 
settlement  was  to  the  wife  herself,  and  not  to  any  other  person 
in  trust  for  her.  Van  Arsdale  v.  Van  Arsdale,  26  N.  J.  Law, 
404.  It  h;is  also  been  held  that  a  devise  of  lands  to  trus- 
tees for  the  benefit  of  the  wife  does  not  necessarily  indi- 
cate intention  to  defeat  dower,  as  the  trustee  may  take  the  lands 
subject  to  its  legal  incidents,  that  of  dower  included.  Wood  v. 
Wood,  suj)ra;  Church  v.  Bull,  stipra.  But  the  language  of  our 
statute  is  broad  enough  to  include  devises  to  trustees  for  the 
l>enefit  of  the  wife,  as  well  as  those  directly  to  the  wife  herself. 
It  would  be  a  narrow  construction  that  would  exclude  a  devise 
to  a  trustee  from  the  meaning  of  the  following  words  in  section 
10:  "  Any  other  provision  made  by  the  will  of  a  deceased  hus- 
band or  wife  for  a  surviving  wife  or  husband."  The  use  of  the 
word  "  for  "  forbids  a  limitation  of  the  meaning  to  devises  made 
to  the  wife. 

The  next  question  is  whether  the  appellant  is  entitled  to  have 
a  homestead  assigned  to  her.  The  will  provides  not  only  that 
there  shall  belong  to  the  api)ellant  one-third  of  the  net  annual 
income  during  her  natural  life,  but  "  also  a  suitable  house  for 
her  residence  during  the  same  period,"  and  that  she  shall  not  be 
required  to  pay  rent  for  the  use  of  such  residence.  Since  her 
husband's  death  she  has  continued  to  reside  in  the  same  house, 
l)el()nging  to  her  estate,  in  which  she  lived  with  him  at  the  time 
of  his  death,  and  for  several  years  prior  thereto.  Section  11,  as 
above  quoted,  directs  that  any  one  entitled  to  an  election  under 
section  10  "  shall  be  deemed  to  have  elected  to  take  such  joint- 
ure, devise,  or  other  provision,  unless  "  there  is  a  renunciation 
within  the  specitied  year.  The  provision  which  such  jjcrson 
shall  be  deemed  to  have  elected  to  take  is  the  whole  of  the 
provision  made  for  him  or  her  in  the  will,  and  not  a  part  of  such 
provision.  The  devise  elected  to  be  taken  will  be  the  whole  of 
the  devise  given,  and  not  a  part  thereof.  It  follows  that  when 
appellant,  by  her  failure  to  renounce,  elected  to  take  one-third 
of  the  net  anniuil  income  for  her  natural  life,  she  also  elected 
to  take  therewith  a  suitable  house  for  her  residence  during  the 
same  period.  Hence  her  continued  residence  in  the  house 
where  she  and  her  husband  lived  when  he  died  will  be  [)resumcd 
to  be  in  the  exercise  of  the  right  thereto  as  given  l)y  the  will, 
and  not  in  the  exercise  of  her  statutory  right  of  homestead. 
Stunz  V.  Stunz,  supra.  The  statute  gives  a  householder  having 
a  family  as  estate  of  homestead  to  the  extent  in  value  of  $1,000, 
and  continues  such   exemption  after  his  death  to  his  surviving 


90  ESTATES    AlilSING    OUT    OF    MARRIAGE. 

wife,  so  long  as  she  continues  to  oc(Uipy  the  liomcsteiul.  Rev. 
St.,  c.  52,  §§  1,  2.  The  will  in  this  case  does  not  limit  the 
value  of  api)ellant's  residence  to  $1,000,  or  any  other  amount, 
but  only  requires  that  the  house  shall  be  suitable  for  her  resi- 
dence. The  residence  provided  for  by  the  will  is  not  the  same 
as  the  homestead  given  by  the  statute.  The  general  rule  is  that 
a  person  cannot  accei)t  and  reject  the  same  instrument.  Bir- 
mingham v.  Kirvvan,  2  Schoales  &  L.  449;  2  Stoiy  Ecj.  Jur., 
§  1077,  note  4.  It  is  a  maxim  of  equity  not  to  permit  the  same 
person  to  hold  under  and  against  a  will.  Brown  v.  Pitney,  39  111. 
468;  Ditch  v.  Sennolt,  IH^'Ill.  362;  7  N.  E.  636.  The  at)pellant 
cannot  accept  the  will  as  to  dower  and  reject  it  as  to  the  provision 
which  it  makes  for  a  homestead  or  residence.  Nor  does  the  law 
contemplate  that  a  householder  can  have  two  homesteads.  Tour- 
ville  V.  Pierson,  39  111.  446.  Ap[)ellant,  having  elected  to  take  a 
house  for  her  residence  according  to  the  terms  of  the  will,  cannot 
have  a  homestead  set  apart  to  her  under  the  statute.  It  is  true 
that  a  homestead  under  the  statute  is  exempt  ''  from  the  laws  of 
conveyance,  descent,  or  devise,"  except  as  therein  provided  ; 
but  where  the  testator  directs  in  his  will  that  his  wife  shall  have 
a  suitai)lo  house  for  her  residence  during  her  life  without  pay- 
ment of  lent  therefor,  and  she  accepts  the  provision  of  the  will, 
she  cannot  insist  upon  her  statutory  right  of  homestead.  Cow- 
drey  V.  flitchcock,  sxjjrn. 

The  next  question  arises  upon  a  cross  error  assigned  by 
appellees,  and  is  whether  the  appellant  is  justly  chargeable  with 
malfeasance  as  trustee  in  discharge  of  certain  special  assessments 
levied  upon  real  property  of  the  estate  for  paving  streets  and 
putting  in  sewers.  The  will  directs  that  "  the  annual  taxes  and 
insurance,  and  also  all  reasonable  repairs  and  improvements, 
shall  be  })rovided  for  out  of  the  annual  rents  and  interest," 
before  one-third  of  the  annual  income  shall  belong  to  the 
wife.  It  cannot  be  said  that  a  direction  to  pay  "  annual 
taxes  "  is  a  direction  to  pay  special  assessments.  A  special 
assessment  im[)osed  for  a  special  purpose  has  none  of  the 
distinctive  features  of  the  ordinary  annual  tax,  which  is 
imposed  for  some  general  or  public  object.  Illinois  Cent. 
R.  Co.  V.  City  of  Decatur,  126  111.  92;  18  N.  E.  315;  Id.  147 
U.  S.  190  ;  13  Sup.  Ct.  293.  But  we  see  no  reason  why  the 
paving  of  a  street  in  front  of  a  lot,  and  the  pulling  down  of  a 
sewer  therein,  should  not  be  regarded  as  "  reasonable  improve- 
ments." The  improvement  may  be  local  as  affecting  the  local- 
ity in  which  the  i)ropeity  is  situated,  but  is  of  special  benefit  to 
the  particular  property  assessed,  because  it  increases  its  value  ; 
not  only  the  permanent  value  inuring  to  the  benefit  of  the  rever- 


WIDOW    MAY    CLAIM    HOMESTEAD    AND    DOWER.  91 

sioner,  but  jilso  the  rental  value  during  the  existence  of  the  life 
estate.  The  widow  must  pay  the  taxes  and  charges  upon  the 
property  assigned  to  her  for  dower.  Peyton  v.  Jeffries,  50  III. 
143  ;  White  v.  Mayor,  etc.,  2  Swan.  3G4;  Haulcni)eclc  v.  Cronk- 
right,  23  N.  J.  Eq.  407.  In  White  v.  Mayor,  etc.,  supra,  it 
was  held  that,  where  a  lot  had  been  assigned  to  a  widow  as  part 
of  her  dower,  the  cost  of  paving  the  street  in  front  of  the  lot 
was  a  proper  charge  against  her.  When  dower  is  assigned,  the 
widow  becomes  seised  of  a  freehold  estate  for  life  in  the  portion 
allotted  to  her.  She  is  in  by  gelation  from  her  husband's  death, 
and  is  not  of  the  seisin  of  her  husband.  4  Kent  Comm.,  §§  61, 
09.  Standing  in  his  place,  she  must  be  "  subjected  to  the 
charges,  duties  and  services  to  which  the  estate  may  be 
liable,  in  proportion,  certainly,  to  her  interest  therein." 
Peyton  v.  Jeffries,  supra.  Here  the  appellant,  being  entitled 
to  one-third  of  the  net  annual  rents  and  interest  during 
her  life,  may  be  regarded  as  a  tenant  for  life.  The  tenant 
for  life  is  bound,  out  of  the  rents  and  profits,  to  keep  down 
all  incidental  charges  upon  the  lands  which  accrue  during 
the  continuance  of  his  or  her  estate,  as  for  repairs,  taxes,  and 
the  like.  White  v.  Mayor,  siqjra.  A  special  assessment  for 
paving  and  sewerage,  as  well  as  taxes  and  repairs,  may  be 
included  in  such  incidental  charges.  If,  under  the  terms  of  the 
will  of  Alpha  Warren,  the  ap[)ellant  cannot  be  charged  with  her 
proportionate  share  of  the  special  assessments,  then  the  appellee 
John  H.  Warren  cannot,  by  the  same  construction,  be  charged 
with  his  proportionate  share  thereof.  If  such  assessments 
are  not  to  be  jjaid  out  of  the  rents  and  interest,  how  are  they 
to  be  }iaid?  It  is  suggested  that  application  can  be  made  to  a 
court  of  equity  for  leave  to  sell  some  of  the  land  in  order  to 
raise  the  amount  required  ;  but  the  amount  of  appellant's  income 
might  be  diminished  by  such  a  sale  as  much  as  it  would  be  by 
paying  the  assessments  out  of  the  rents  and  interest;  and,  not 
only  so,  but  a  sale  of  a  portion  of  the  property  for  such  a  pur- 
pose would  defeat  the  manifest  intention  of  the  testator,  as  dis- 
closed by  the  clause  of  the  will  which  directs  "  my  trustee  to 
hold  and  keep  my  estate  intact  during  his  natural  lifetime." 
For  the  reason  thus  stated,  we  think  that  the  decree  of  the  cir- 
cuit court  was  correct  in  holding  that  appellant  was  not  entitled 
to  dower  and  homestead,  but  was  erroneous  in  holding  that 
appellant  was  wrongfully  charged  with  one-third  of  said  special 
assessment,  and  in  ordering  that  the  executor  and  trustee  should 
pay  to  the  appellant  the  amount  so  charged  to  her.  For  this 
error  the  decree  to  the  extent  here  indicated  is  reversed,  and  the 
cause  is  remanded  to  the  circuit  court  for  further  proceedings  in 
accordance  with  the  views  herein  expressed.     Reversed. 


92  ESTATES   ARISING   OUT   OF   MARRIAGE. 

Occupation  Necessary  to  Claim  of  Homestead. 

Ingels  V.  Ingels,  50  Kan.  755;  32  P.  3S7. 

Allen,  J.  On  the  22(1  duy  of  Jane,  1889,  defendant  in  error 
f>l)taiiied  a  judirmeiit  in  the  district  court  of  Atchison  County, 
Kiin.,  aizninst  T.  J.  Ingels  and  M.  F.  Ingels  for  the  sum  of 
$!»()(). 90'and  costs  of  suit.  On  the  9th  day  of  August,  1889, 
execution  was  issued  on  said  judgment  to  the  sheriff  of  Atchison 
county.  On  the  19th  of  August,  1889,  said  sheriff  levied  the 
same  on  lot  11,  and  the  west  40  feet  of  lot  12,  bh)ck  11,  in  thai 
part  of  the  city  of  Atchison,  commonly  known  as  "  West  Atchi> 
son."  The  sheriff  duly  advertised  this  property  for  sale,  and 
on  the  26th  day  of  September,  1889,  sold  the  same  to  the 
plaintiff  below  for  the  sura  of  $157.  Motions  were  thereafter 
tiled  both  to  confirm  and  set  aside  said  sale.  These  motions 
were  heard  at  the  same  time.  The  motion  to  set  aside  the  sale 
was  overruled,  and  the  motion  to  confirm  was  sustained.  The 
defendants  below  excepted  to  the  ruling  of  the  court  on  these 
motions,  and  bring  the  case  here  for  review. 

Two  points  are  urged  by  counsel  for  the  plaintiffs  in  error. 
One  is  that  the  appraisement  is  defective,  because  the  appraise- 
ment fails  to  state  that  the  appraisers  made  an  estimate  of  the 
real  value  of  the  property.  The  a[)praisement  does  state  that 
the  appraisers,  being  tir.-st  duly  sworn  im[)artially  to  appraise  the 
said  property  upon  actual  view,  had  truly  and  impartially 
appraised  said  property,  and  that  the  })articular  property  in 
controversy  was  appraised  at  $150.  We  think  this  a  substantial 
conn)liance  with  the  statute.  It  is  not  necessary  that  the  precise 
language  of  the  statute  be  used  in  the  report  of  the  appraisers. 
We  think  that  the  appraisement  in  this  case  fairly  shows  that 
the  property  was  appraised  at  what  the  appraisers  deemed  its 
real  value.  This  is  a  substantial  compliance  with  the  require- 
ment of  the  statute. 

The  principal  question  presented  for  our  consideration  is 
whether  or  not  this  property  was  a  homestead,  and  therefore 
exempt  from  levy  and  sale.  The  facts  with  reference  to  the 
matter,  as  appears  from  the  record,  are  as  follows:  The  plain- 
tiffs in  error  formerly  owned  and  occupied  a  homestead  in  West 
Atchison,  which  they  sold  in  the  year  1887,  expecting  and  in- 
tending at  the  time  to  reinvest  the  proceeds  in  another  home- 
stead. Soon  thereafter  they  invested  a  part  of  the  proceeds  of 
this  sale  in  the  property  in  controversy,  for  the  purpose  and 
with  the  intention  of  making  it  their  permanent  homestead. 
At  the  time  of  the  purchase  there  was  no  house  or  other 
building     thereon,    and     the    same    was    not   inclosed.     They 


OCCUPATION    NECKSSAIIV    TO    CLAIM    OF    HOMESTEAD.  93 

inclosed    the     lots     with    a     fence,    and,   as    fast  as  they  were 
able,  proceeded  to  and  had   hauled  on  said  lots  materials,  stone, 
Uiinber,     etc.,     with     which     to     buiUl    a    dwelling-house    and 
building    to  occupy  as  a    homestead.     Milliard  F.  Liirds  then 
tooi<  a  contract  at  Valley  Fails  to  bore  for  coal,  and  temporarily 
inovi'd   to  Valley    Falls,   to  be    near  his  work,  and  intending  to 
return  to  his  homestead,  complete  his  dwelling-house,  and  occupy 
the  same  as  his    permanent    homestead.     While    he    was    still 
engaged  on  his  contract  at  Valley  Falls,  and  before  he  had  com- 
pleted the  same,   on   the    19th  day  of  August,  1^89,  the  sheriff 
levied  said   execution   on    said   property,  and   sold   the  same  as 
before  stated.     The  plaint  ifis  in  error  have  no  other  homestead, 
and  no  other  real  estate  of  which  to  make  a  homestead.      After 
the  levy  the  defendants  below  built  a  house  on  said  lots,  which 
they  occupied   at  the  time   of  the  sale.     The  defendants  never 
occupied  the  premises  in  question  from  the  time  they  were  pur- 
chased by  the  defendants,  in  March,  1887,  till  after  the  makino- 
of  the  levy  thereon  ;   and  at  the  time  said  judgment  was  rendered 
and    at    the    time    the  levy  was  made,  the  said  premises  were 
vacant  and  unoccupied,  excepting  tiiat  they  were  inclosed  by  an 
old  fence.     The  facts  in   this  case  are   to  be  gathered  from  the 
affidavit    made  by    both  plaintiffs    in    error,    and  also  from   an 
agreed     statement    of    the    facts    made    by   both    parties,    and 
included  in  the  record.     The  statements  with  reference  to  the 
placing   of  building    materials   on    the   lots  are  contained  in  the 
affidavit.     From     the    agreed    statement    it    appears    that    the 
defendants    never  occupied    the    premises    in    question    from 
the  time  they  purchased  them  to  the  time  of  the  levy,  and  that 
at    the   time  the  judgment   was  rendered  and  at  the  time  of  the 
levy   the    premises    were    vacant   and   unoccupied,    except    that 
they    were    inclosed    by    an    old  fence.     We  can    only    harmo- 
nize   the    facts    gathered    from    the    affidavit    with  those  con- 
tained   in    the    agreed    statement    of    facts    by  concluding  that 
whatever    building    materials    had    been    placed    on    the    lots 
were  removed  therefrom  before  tlie   levy  was  made.     It  clearly 
appears  from  the  whole  record  that  the  premises  were  never  in 
fact  occupied  by  the  defendants  as  a  homestead,  and  also  that  at 
the  time  the  judgment  was  rendered  and  the  levy  made  the  lots 
were  vacant  and  unoccupied.     The  question  is  now  presented  for 
our  consideration  as  to  whether  the  purchase  of  this  property  for 
a  homestead,  and  the  intention  in  the  minds  of  those  parties  to 
make  it  a    homestead    in    the   futui-e,    is    sufficient   to    supply 
the  requirement  of    occupancy    contained    in    the  constitution. 
Section  9,  art.  15,  of  the  constitution  reads  as  follows:   *'  Sec. 
9.     A  homestead  to  the  extent  of  one  hundred  and  sixty  acres  of 


94  ESTATES    ARISING    OUT    OP    MARRIAGE. 

farming  land,  or  of  one  acre  within  the  limits  of  an  incorporated 
town  or  city,  occupied  as  a  residence  by  the  family  of  the  owner, 
together  with  all  the  improvements  on  the  same,  shall  hr, 
exem|)ted  from  force  sale  under  any  i)rocess  of  law,  and  shall 
not  be  alienated  without  the  joint  consent  of  husband  and 
wife,  when  that  relation  exists ;  but  no  property  shall  be 
exempt  from  sale  for  taxes,  or  for  the  payment  of  obligations 
contracted  for  the  })urchase  of  said  premises,  or  for  the  erec- 
tion of  improvements  thereon ;  provided,  the  provisions  of  this 
section  shall  not  apply  to  any  process  of  law  obtained  by  virtue 
of  a  lien  given  by  the  consent  of  both  husband  and  wife."  This 
section  of  the  constitution  has  been  considered  and  construed  by 
this  court  in  numerous  cases.  In  the  case  of  Edwards  v.  Fry, 
9  Kan.  417,  Mr,  Justice  Brewer,  speaking  for  the  court,  used 
the  following  language:  "  We  know  the  spirit  which  animates 
the  people  of  Kansas,  the  making  of  our  constitution  and  laws, 
on  this  homestead  question.  We  note  the  care  with  which  they 
have  sought  to  preserve  the  homestead  inviolate  to  the  family. 
We  have  no  disposition  to  weaken  or  whittle  away  any  of  the 
beneficent  constitutional  or  statutory  provisions  on  the  subject. 
We  know  that  the  purchase  of  a  homestead,  and  the  removal 
onto  it  cannot  be  made  momentarily  contemporaneous.  It  takes 
time  for  a  party  in  possession  to  move  out,  and  then  more  time 
for  the  purchaser  to  move  in.  Repairs  may  have  to  be  made, 
or  buildings  partially  or  wholly  erected.  Now,  the  law  does 
not  wait  till  all  this  has  been  done,  and  the  purchaser  actually 
settled  in  his  new  home  before  attaching  to  it  the  inviolal)ility 
of  a  homestead.  A  purchase  of  a  homestead  with  a  view  to 
occupancy,  followed  by  occupancy  within  a  reasonable  time, 
may  secure  ab  initio  a  homestead  inviolability.  Yet  occu- 
pation is  nevertheless  an  essential  element  to  secure  this 
inviolability."  Again,  in  the  case  of  Monroe  v.  May,  Id. 
466,  it  was  held;  "A  purchase  of  a  homestead  with  a  view 
to  occupancy,  followed  by  occupancy  within  a  reasonable 
time,  receives  from  the  time  of  purchase  a  homestead  exemp- 
tion from  seizure  upon  execution  or  attachment."  The  facts 
in  that  case  with  reference  to  the  occupancy  are  briefly  these  : 
Monroe,  the  judgment  debtor,  owned  a  farm,  which  he  sold 
in  November,  1870,  receiving  in  exchange  a  house  and  lot  in 
Atchison  and  $1,600  in  notes.  Posses-^ion,  by  agreement,  was 
to  be  exchanged  on  the  1st  of  March  following.  The  exchange 
was  so  made,  and  this  city  property  was  occupied  and 
claimed  by  Monroe  and  wife  as  their  homestead.  The  court  in 
that  case  came  to  the  conclusion  that  the  Monroes  became  actual 
occupants  of  this  property  within  a  reasonable  time    after  its 


OCCUPATION    NECESSARY   TO    CLAIM    OF   HOMESTEAD.  95 

purchase,  and  that  it  was  exempt  to  them  as  a  homestead.  The 
time  intervening  between  the  purchase  and  taking  possession 
was  four  montlis  or  less.  Again,  in  the  case  of  Gilworth  v. 
Cod}',  21  Kan.  702,  it  appeared  that  Cody,  on  December  1,  1877, 
purchased  80  acres  of  land  for  the  purpose  of  present  use  as  a 
residence.  The  land  was  vacant  at  the  date  of  the  puichase. 
Cody  commenced  at  once  to  dig  a  cellar,  and  haul  stone  for  a 
dwelling  house.  On  December  5lh,  he  started  to  a  neighboring 
town  to  ))urchase  materials  out  of  which  to  erect  a  dwelling 
house.  He  made  such  purchase,  and  returned  with  the  materials 
on  December  7th.  He  unloaded  the  materials  a<ljoiuing  the 
premises  on  the  same  day  the  premises  were  levied  on  under  the 
order  of  attachment.  Cody  continued  the  construction  of  his 
dwelling  house,  and  completed  the  same  December  28,  1877, 
and  moved  at  once  with  his  family  into  the  dwelling,  and 
occupied  it  as  the  lesidence  of  himself  and  family.  Chief  Justice 
Horton,  in  delivering  the  opinion  of  the  court,  used  the  follow- 
ing language,  after  having  reviewed  the  authorities  on  the  sub- 
ject: "These  decisions  clearly  establish  the  doctrine  that  our 
homestead  laws,  beneficial  in  their  operation,  and  founded  in  a 
wise  policy,  should  be  liberally  construed,  so  as  to  carry  out 
their  spirit.  Considered  in  this  light,  in  this  case  there  was  such 
an  actual  purpose  and  intention  of  present  occupancy,  accom- 
panied with  such  acts  on  the  i)art  of  the  defendant  in  error  in 
the  commencement  and  completion  of  his  dwelling,  together  with 
his  residence  therein  with  his  family,  that  this  might  reasonably 
be  held  to  amount  in  substance  to  actual  occupancy  at  the  date 
of  the  levy.  While,  therefore,  we  hold,  within  the  terms  of  the 
law,  that  occupation  is  an  essential  element  to  secure  a  home- 
stead inviolability,  under  the  exceptional  ciicumstances  which 
appear  from  the  findings  of  the  court,  the  intentions  and  acts  of 
the  purchaser  of  the  land  in  controversy  may  be  construed  into 
a  legal  equivalent  of  actual  occupancy  of  such  piemises.  Law 
is  entitled  to  and  can  command  respect  only  when  it  is  reasona- 
ble, and  ada[)led  to  the  ordinary  conduct  of  human  atfairs  ;  and 
the  construction  we  have  given  ai)ove  to  the  provisions  securing 
homestead  exemptions  is  certaiidy  within  their  spirit,  and  more 
in  consonance  with  a  reasonable  interpretation  thereof,  than  if 
we  adopted  the  oppos^ite  conclusion." 

Counsel  for  the  plaintifls  in  error  calls  our  attention  to  the 
case  of  Reske  v.  Reske,  51  Mich.  541;  16  N.  W.  Rep.  895.  The 
opinion  in  that  case  was  delivered  by  Justice  Cooley,  and  carries 
the  doctrine  of  constructive  occupancy  for  a  homestead  to  the 
furthest  limit  yet  reached  by  any  court,  so  far  as  we  have  been 
able  to  review  the  authorities.     It  appeared  in  that  case  that  the 


96  ESTATES    ARISING    OUT    OF    MARRIAGE. 

defendant  purchased  the  lot  in  controversy  in  Detroit  in  Janu- 
ary, 1880,  lie  was  a  sintrlc  man  at  the  time  of  the  purchase, 
but  soon  thereafter  married.  Ho  then  fenced  the  h)t  and  com- 
menced makin«5  use  of  it.  lie  built  a  barn  and  shed,  dupr  a  -weil, 
kept  his  horses,  his  hogs,  and  his  poultry,  and  also  piled  wood, 
which  he  kept  for  sale,  on  the  lot.  At  first  he  lived  at  some  con- 
siderable distance,  but  afterwards  took  board  across  the  way, 
and  remained  there  while  Ixiilding.  In  the  spring  of  1881  he  ob- 
tained figures  from  a  builder  on  the  cost  of  a  house,  but,  not 
beins:  able  to  go  on,  he  did  not  then  build.  It  was  towards  the 
end  of  1882  before  they  were  able  to  put  up  a  house,  and  they 
were  not  living  in  it  till  1883.  In  November,  1882,  judgment 
was  taken  against  the  defendant,  and  execution  levied  on  the  lot. 
The  court  in  that  case  comments  on  the  fact  that  the  defendant 
was  all  the  time  in  actual  occupancy  of  the  lot,  and  was,  from 
time  to  time,  doing  various  acts  tending  towards  the  construc- 
tion of  such  buildings  and  conveniences  as  were  required  in  order 
to  make  it  a  home.  The  period  of  time  intervening  between 
the  purchase  of  the  lot  and  the  levy  of  the  execution  was  a  few 
months  longer  than  in  this  case.  It  will  be  noted,  however, 
that  in  this  case  it  is  expressly  admitted  that  there  was  not  at 
any  time  actual  occupancy  of  the  premises  by  the  defendant 
from  the  time  of  the  purciiase  till  the  date  (»f  the  levy.  In  that 
case  the  defendant  testified,  and  the  court  quotes  from  his  testi- 
mony the  following  language:  "  I  built  eveiy  day  as  soon  as  I 
got  a  little  money  ahead."  The  court  evidently  took  the  view  of 
the  case  that  the  defendant's  delay  in  the  construction  of  his 
dwelling  house  was  due  solely  to  his  poverty,  and  that  he  was  all 
the  time  making  a  determined  effort  to  actually  fit  the  premises 
for  occupation  by  himself  and  family.  He  not  merely  had  the 
purpose  in  his  mind  to  make  the  lot  his  homestead,  but  was 
actually  at  work,  from  time  to  time,  on  the  lot,  preparing  it 
for  a  home.  In  the  case  of  Swenson  v.  Kiehl,  21  Kan.  533,  the 
syllabus  of  the  case  is  as  follows:  "( 1)  Homestead  occupa- 
tion. Occupation,  actual  or  constructive,  is  essential  to  give 
the  character  of  homestead  to  premises.  (2)  *  *  »  Intent 
when  purchased.  While  occupation  need  not  always  be  instan- 
taneously contemporaneous  with  purchase  to  create  a  home- 
stead, yet  the  purchase  must  always  be  with  the  intent  of 
present,  and  not  simply  of  future,  occupancy."  In  that 
case  the  land  was  purchased  by  the  execution  debtor  on  No- 
vember 13,  1879.  The  judgment  on  which  the  execution  was 
issued  was  rendered  in  1873.  One  execution  was  issued 
February  5,  1877,  and  another  February  23,  1877.  The  sale 
was  made   under  the  latter  execution.     There  was  a  house  on 


OCCUPATION    NECESSARY    TO    CLAIM    OF    HOMESTEAD.  97 

the  land,  but  the  defendant  failed  to  occui)}'  it  as  a  residence  for 
more  than  a  year  after  tlie  [)urchase,  and  in  that  case  Mr.  Justice 
Brewer,  in  the  opinion,  says:  "'Occupied  as  a  residence  by 
the  family  of  the  owner,'  is  the  language  of  the  constitution 
defining  a  homestead  exemption.  We  are  aware  that  occupancy 
is  not  always  possible  at  tlie  instant  of  purchase,  and  that,  as  we 
have  heretofore  said,  a  reasonable  time  is  allowable  in  which  to 
prepare  for  and  to  complete  the  removal  and  occupation  of  the 
intended  homestead,  but  the  purchase  must  be  for  the  purpose 
and  with  the  intent  of  present,  and  not  simply  of  future,  use  as 
a  residence."  In  the  case  of  Farlin  v.  Sook,  26  Kan.  398,  it 
was  held  "  under  the  homestead  exemption  laws  no  person  can 
hold  property  exempt  from  execution  or  forced  sale  unless  the 
property  is  '  occupied  as  a  residence  by  the  family  of  the 
owner.'  Therefore,  where  the  owner  of  the  property  resides 
upon  the  same,  but  his  family,  consisting  of  a  wife  and  children, 
have  never  been  in  Kansas,  but  reside  in  Illinois,  and  it  is  not, 
and  never  has  been,  the  intention  of  the  owner  to  bring  them  to 
Kansas,  or  to  have  them  reside  upon  the  property,  held,  that 
the  owner  cannot  hold  the  property  exempt  from  execution  and 
forced  sale  under  the  homestead  exemption  laws."  In  the  case 
of  Koons  V.  Riltenhous,  28  Kan.  359,  it  appeared  that  a  husband 
and  wife  resided  in  New  York  in  1871.  The  hust)and,  desirinof  to 
change  his  place  ot  residence,  came  to  Kansas,  and  purchased  real 
estate,  and  resided  thereon  for  about  four  years,  then  sold  the 
same,  and  executed  a  deed  therefor,  representing  himself  to  be 
a  single  man.  About  a  year  afterwards  the  wife  came  to  Kan- 
sas, and  thereafter  resided  upon  the  land  with  her  husband,  and 
it  had  been  at  all  times  the  intention  of  the  husband  and  wife 
that  she  should  at  some  time  come  to  Kansas,  and  reside  upon 
the  land  with  him.  It  was  held  that  the  land  had  never  been 
occupied  as  a  residence  by  the  family  of  the  owner  in  accordance 
with  the  exemption  hiw,  and  that  the  deed  from  the  husband 
alone  was  therefore  not  void.  Again,  in  the  case  of  Bradford 
V.  Trust  Co.,  47  Kan.  587;  28  Pac.  Rep.  702,  in  concluding  the 
opinion.  Chief  Justice  Horton  says:  "Under  the  constitution, 
there  must  be  occupancy  as  a  residence  by  some  one  of  the 
family  of  the  owner  to  constitute  a  homestead." 

We  do  not  think  there  is  any  real  conflict  in  the  authorities 
cited,  nor  do  we  think  that  the  Michigan  case  goes  to  the  limit 
which  the  ])laintiff  in  error  asks  us  to  reach  in  this  case.  What- 
ever our  views  might  be  as  to  the  propriety  of  allowing  a  debtor 
to  hold  a  tract  of  land  for  a  homestead,  whether  occupied  or 
not,  we  are  bound  to  declare  the  law  as  we  find  it,  and,  while 
this    court    in    the    cases    cited    has    siven    the    constitutional 


98  KSTATKS    LKSS    THAN    FUKKTIOLD. 

provision  !i  liI>or:il  constriiction  for  the  purpose  of  fully  s^ccur- 
ing  to  iiGody  <lcbtors  the  biMidiocnt  oxcmptioii  secured  to  them 
by  the  constitution,  yet  we  may  not  wholly  tlispense  with  the 
requiiement  of  occupancy.  Can  it  be  said  that  these  lots, 
though  vacant  and  wholly  unoccupied  for  a  period  of  more  than 
two  y('ars,  were  in  the  constiuctive  occupancy  of  the  defend- 
ants, because  they  were  purchased  with  the  proceeds  of  a 
former  homestead,  and  the  defendants  intended,  as  soon  as 
they  should  be  able  to  build  thereon,  to  occupy  them.  If  we 
hold  these  lots  to  have  been  a  homestead  during  all  this  time, 
by  what  course  of  reasoning  can  we  ever  fix  a  litnit  within 
which  actual  occupancy  must  take  ]ihicc?  The  admission  con- 
tained in  the  record  that  the  defendants  never  occupied  the 
lots  or  premises  in  question  herein  from  the  time  they  were 
purchased  by  the  defendants,  in  March,  1887,  up  to  the  time 
subsequent  to  the  making  of  the  levy  herein  (which  was  on 
August  19,  1889),  and  that  at  the  time  of  the  levy  the  premises 
were  vacant  and  unoccupied,  seems  to  us  to  be  decisive  of  this 
case;  and  that  the  defendants  have  admitted  that  occupancy 
by  the  family  of  the  defendants  did  not  exist,  and  therefore 
the  defendants  cannot  claim  the  premises  exempt  to  them  as  a 
homestead.  The  fact  that  the  defendants  took  possession  of 
the  lots  and  constructed  a  house  thereon  after  the  levy  of  the 
execution  cannot  of  itself  defeat  the  lien  of  the  judgment. 
Bullene  v.  Hiatt,  12  Kan.  98.  The  rights  of  the  parties  were 
fixed  at  the  time  of'  the  levy,  and  no  subsequent  act  of  the  debtor 
could  change  them.  We  find  no  error  in  the  rulings  of  the 
district  court,  and  its  orders  will  be  affirmed.  All  the  justices 
concurring. 

CHAPTER    yil. 

SECTION   I. 

ESTATES  FOR  YEARS. 

Syms  V.  Mayor  of  New  York,  105  N.  Y.  153;    11  N.  E.  3G9. 

Freelaud  v.  Ritz,  154  Mass.  257;  28  N.  E.  226. 
Sexton  y.  Chicago  Storasre  Co.,  r29  111.  318;  21  N.  E.  920. 
Doyle  V.  Un.  Fac.  Ry.  Co.,  147  U.  S.  413. 
Ingalls  V.  Hobbs,  15«  Mass.  348;  31  N.  E.  286. 
Snow  V.  Pulitzer,  142  N.  Y.  263;  36  N.  E.  1059. 
Stevens  v.  PauUiiid,  95  Mich.  145;  54  N.  W.  116. 
Barlow  v.  Dahin,  97  Ala.  414;  12  So.  293. 

Covenant  for  Renewal  and  the  Rule  of  Perpetuity. 

Syms  V.  Mayor  of  New  York,  105  N.  Y.  153;    11  N.  E.  369. 

Earl,  J.     On  the  10th  day  of  April,  1810,  the  city  of  New 
York  executed  to  Peter  Lorillard  a  lease  demisingr  to  him  certain 


COVENANT   FOR   RENEWAL.  99 

})reniis('s  for  a  term  of  30  years,  ending  on  the  first  day  of  May, 
1840.  The  lease  was  exeeuled  l)y  both  parties,  and  in  it  the  city 
agreed  that  at  the  exi)ir;ition  ot  the  term,  to  wit,  Miiy  1,  1840, 
it  wonld  demise  the  premises  to  him,  his  assigns,  etc.,  "  for  and 
during  the  term  of  twenty-one  years  thereafter,  with  alike  cove- 
nant for  future  renewals  of  the  lease  as  is  contained  in  the 
present  indenture."  On  Febiunry  1,  1839,  Lorillaid  assigned 
the  lease  to  John  Syms,  who  thus  became  substiluted  in  his 
place.  On  the  first  day  of  April,  1840,  the  city  executed  a  lease 
of  the  same  {)remises  to  John  Syms  for  another  teim  of  21  years, 
in  which  it  covenanted  that  at  the  expiration  of  that  lease,  to 
wit.  May  1,  18G1,  it  would  again  demise  the  premises,  "  in  pur- 
suance of  this  present  lease,  *  *  *  for  and  during  the  term 
of  twenty-one  yeais  thereafter,  upon  such  rents  as  shall  be 
agreed  upon,"  or  determined  by  two  sworn  appraisers  and  an 
umpire.  On  the  twentieth  of  April,  1861,  the  city  executed  a 
third  lease  to  John  Syms  for  21  years  from  May  1,  1861.  That 
lease  contained  no  covenant  for  renewal,  and  in  it  Syms  cove- 
nanted that  at  the  end  of  that  term  he  would  peaceably  and 
quietly  leave,  surrender,  and  yield  up  to  the  city,  or  its  successors 
or  assigns,  all  of  the  demised  premises.  Syms  died  in  1868, 
having  some  years  before  his  death  erected  a  valuable  building 
u})()n  the  premises.  In  April,  1880,  the  city  sold  the  premises 
to  John  B.  Ha>kin.  Thereafter,  in  October,  1880,  the  plaintiffs, 
as  executors  of  Syms,  commenced  this  action,  alleging  in  their 
complaint,  among  other  things,  the  facts  hereinbefore  stated, 
and  praying  that  the  city  be  adjudged  to  reform  the  leases 
dated  April  1,  1840,  and  A|)ril  20,  1861,  by  inserting  therein  a 
covenant  for  a  fuither  renewal  of  21  years  from  May  1,  1882, 
and  that  the  sale  and  conveyance  to  Haskin  be  set  aside,  and  the 
plaintiffs  be  given  a  renewal  lease  for  21  years  from  May  1, 
1882,  or,  if  the  defendants  had  put  it  out  of  their  power  to  per- 
form the  covenant  by  having  sold  the  premises,  that  they  and 
Haskin  be  adjudged  to  pay  the  i)laintiffs  their  damages  by  them 
sustained  for  the  conversion  of  the  building  on  the  premises  to 
their  own  use  and  for  damages  by  depriving  the  plaintiffs  of  a 
further  renewal  of  the  lease  of  the  demised  premises,  to  the 
amount  of  $18,000.  Upon  the  trial,  at  the  close  of  the  evidence, 
the  court  directed  a  verdict  in  favor  of  the  defendants. 

We  are  of  opinion  that  the  verdict  was  properly  directed. 
The  lease  executed  in  1810  should  not  be  so  construed  as  to 
create  a  perpetuity.  Rutgers  v.  Hunter,  6  Johns.  Ch.  215; 
Carr  v.  P^llison,  20  Wend.  178  ;  Piggot  v.  Mason,  1  Paige,  412; 
Baid^er  v.  Banker,  9  Abb.  N.  C.  411.  Its  language  is  satisfied 
by  holding  that  it  gave  the  lessee  the  right  to  two  renewals,  and 


100  ESTATK8    LESS    THAN    FKEEHOLD. 

tliose  I'enewj'.ls  wow  t^iihscqiiciilly  <riven  ;  ;iiul  it  must  Ix;  assumed 
lliat  the  parties  so  iiiidiTalood  tlio  first  lease.  The  two  renewals, 
bigiied  by  both  parties,  gave  that  lease  ji  practical  conbtruetioii 
which  should  have  great  weight  with  any  court  called  upon  to 
ascertain  its  meaning  and  effect. 

But  the  second  lease,  executed  in  1840,  which  then  defined  the 
rights  of  the  parties,  contained  a  covenant  for  but  one  renewal. 
In  the  last  lease  there  was  no  covenant  for  renewal,  and  in  the 
lease  the  lessee  absolutely  covenanted  at  the  end  of  his  term  to 
surrender  up  the  premises  to  the  lessor.  So  long  as  the  lease 
remained  in  its  present  form,  neither  lessee,  nor  any  person 
claiming  under  him,  could  assert  any  right  to  the  piemises  after 
its  termination.  It  defines  the  precise  rights  of  the  parties  in  the 
demised  premises,  and  neither  could  assert  anything  in  contra- 
vention of  it. 

This  action  was  brought  mainly  for  the  purpose  of  reforming 
the  last  two  leases.  But  there  was  no  })roof  of  any  mistake,  or 
fraud  in  their  execution,  or  in  the  tei-ms  inserted  in  them;  and 
therefore,  even  if  the  statute  of  limitations  did  not  furnish  a  bar 
to  the  action  to  reform  the  leases,  there  was  no  basis  or  ground 
for  their  reformation.  The  plaintiffs'  action  therefore  utterly 
failed,  and  a  verdict  was  properly  directed  for  the  defendants. 

The  judgmententered  u[)on  the  verdict  providesthatthe  defend- 
ants should  recover  costs  of  the  plaintiffs,  and  have  execution 
therefor.  At  thegeneial  terra  it  was  also  adjudged  that  the  city 
should  recover  of  the  plaintiffs,  as  executors,  its  costs,  and  should 
have  execution  therefor.  The  plaintiffs  now  complain  of  this 
provision  for  costs,  and  cite  section  3246  of  the  Code.  That  sec- 
tion expressly  authorizes  costs  against  them  as  executors.  The 
court  did  not  direct  them  to  pay  the  costs  personally,  but  the 
judgment  for  costs  is  against  them  in  their  representative  capac- 
ity. After  a  verdict  had  been  directed  for  the  defendants,  the 
plaintiffs  moved  for  a  new  trial  upon  the  judge's  minutes,  which 
was  denied,  and,  after  entry  of  judgment,  they  appealed  to  the 
general  term,  both  from  the  order  denying  their  motion  for  a  new 
trial  and  from  the  judgment,  and  at  the  general  term  both  the 
order  and  judgment  were  affirmed,  and  the  court  awarded  against 
the  plaintiffs,  not  only  costs  upon  the  appeal  from  the  judgment, 
but  also  $10  costs  upon  the  appeal  from  the  order.  Having 
awarded  costs  upon  the  appeal  from  the  judgment,  the  court  had 
no  power  to  award  costs  upon  the  appeal  from  the  order.  Code, 
§  3239,  subd.  2.  It  is  a  small  matter,  and  should  have  been  cor- 
rected in  the  court  below,  and  we  have  no  means  of  knowing  that 
it  was  not  corrected  in  the  judgment  finally  entered.  The  judg- 
ments in  the  court  below  should  not  have  contained  the  provis- 


LEASE  —  STATUTE     OF   FRAUDS.  101 

sions  that  the  defendants  should  have  executions  for  their  costs. 
The  judgments  for  costs  could  be  enforced  by  executions  only  in 
case  they  wore  allowed  by  the  surrogate,  as  provided  in  sections 
1825  and  i82()  of  the  Code,  But  this  is  an  innocuous  informal- 
ity. Any  intoiinality  in  the  judgment  should  have  been  corrected 
by  motion;  and  it  the  phiintiffs  failed,  upon  such  motion,  in  a 
matter  affecting  a  substantial  right  not  resting  in  discretion, they 
could  have  reached  this  court  by  an  appeal  from  the  order  deny- 
ing their  motion.  We  do  not  correct  such  formalities  upon  a 
mere  appeal  from  the  judgment. 

The  judgment  should  therefore  be  affirmed,  with  costs  against 
the  plaintitfs  as  executors. 

All  concur. 

Leases  —  Statute  of  Frauds  —  Contract  for  a  Lease. 

Freeland  v.  Ritz,  154  Mass.  257;  28  N.  E.  226. 

Lathrop,  J.  This  is  an  action  of  contract  brought  by  the 
members  of  the  firm  of  Freeland,  Loomis  &  Co.  against  the 
members  of  the  firm  of  Ritz  &  Glines,  for  the  breach  of  an 
agreement,  under  seal  and  signed  by  the  parties,  to  accept  a 
lease  of  certain  rooms  in  a  building.  The  agreement  declared 
on  recited  that  a  building  was  then  in  process  of  erection  by  the 
Boylston  Market  Association,  on  the  corner  of  Washington  street 
and  Boylston  street,  in  Boston;  that  Freeland,  Loomis  &  Co. 
had  entered  into  an  agreement  with  said  association  for  a  lease 
of  said  building  as  soon  as  the  same  should  be  completed;  and 
that  Ritz  &  Glines  were  desirous  of  obtaining  from  Freeland, 
Loomis  &  Co.  a  lease  of  part  of  said  building,  '*  to  wit,  rooms 
on  the  sixth  floor  thereof,  as  marked  on  i)lan  of  said  floor,  in  the 
possession  of  Freeland,  Loomis  &  Co.,  containing  about  twenty- 
five  hundred  square  feet,  more  or  less,  and  situated  in  the  north- 
easterly corner  of  said  building,  for  the  purpose  of  there  con- 
ducting the  photographic  business."  Freeland,  Loomis  &  Co. 
agreed  as  soon  as  the  building  should  be  ready  for  occupancy, 
and  a  lease  thereof  executed  and  delivered  to  them,  to  execute 
and  deliver,  and  Ritz  &  Glines  agreed  to  accept,  **  a  lease  of 
the  rooms  aforesaid,  to  be  used  solely  and  exclusively  for  the 
business  aforesaid,  for  a  period  of  five  years  from  the  date  of 
the  completion  of  said  budding,  at  an  annual  rental  of  twenty- 
five  hundred  dollars,  payable  in  equal  monthly  installments,  the 
lease  to  bo  in  substantial  accordance  with  the  blank  form  here- 
unto annexed,  and  to  be  made  subject  in  all  respects  to  the  terras 
and  conditions  of  the  said  agreement  and  lease  between  said 
Freeland,  Loomis  &  Co.  and  said  Boylston  Market  Association." 


102  ESTATES    LESS   THAN   FREEHOLD. 

1.  The  defendants  contend  that,  inasmuch  as  the  agreement 
provides  tliat  the  lease  is  "to  be  made  subject  in  all  respects 
to  the  agreement  and  lease  between"  the  plaintiffs  and  their 
lessor,  which  lease  was  not  then  in  existence,  there  is  no  sufficient 
agreement  or  memorandum  to  satisfy  the  statute  of  frauds.  Pub. 
St.,  c.  78,  §  l,cl.4.  The  agreement  declared  on  is  dated  April 
17,  1888,  and  it  is  clear  that,  considered  alone,  it  is  insufficient 
to  satisfy  the  statute,  for  some  of  its  terms  were  then  uncer- 
tain, and  might  never  be  made  certain.  May  v.  Ward,  134 
Mass.  127  ;  Ashcroft  v.  Butterworth,  13G  Mass.  511.  What  was 
then  uncertain  has,  however,  since  been  made  certain,  as  it  ap- 
pears by  the  report,  upon  which  the  case  comes  before  us,  that 
in  January,  1889,  before  this  action  was  brought,  a  lease,  in 
writing,  of  the  entire  l)uilding,  was  delivered  to  the  [)laintiffs  by 
their  lessor.  It  is  a  well-settled  ride  of  law  that,  while  the 
memorandum  must  express  the  essential  elements  of  the  contract 
with  reasonable  certainty,  these  may  be  gathered  either  from  the 
terms  of  the  memorandum  itself  or  from  some  other  paper  or 
papers  therein  referred  to.  If  one  of  a  series  of  papers  which 
appear  to  have  relation  to  the  same  contract  is  signed  by  the 
party  to  be  charged,  this  is  enough,  as  all  the  papers  are  to  be 
considered  too;ether,  as  forminoj  one  contract  or  memorandum. 
There  is  no  doubt,  also,  that  parol  evidence  is  admissible  to  iden- 
tify any  paper  referred  to.  Atwood  v.  Cobb,  16  Pick.  227,  230  ; 
Lerned  v.  Wannemacher,  9  Allen,  412;  Rhoades  v.  Castner,  12 
Allen,  130  ;  Beckwith  v.  Talbot,  95  U.  S.  289;  Grafton  v.  Cum- 
mings,  99  U.S.  100;  llyau  z;.  U.  S.,  13(5  U.  S.  68,  83  ;  10  Sup. 
Ct.  Rep.  916  ;  Peck  v.  Vundemark,  99  N.  Y.  30  ;  Varnish  Co.  v- 
Lorick  (S.  C),  8  S.  E.  Rep.  8;  Rid<rvvay  v.  Wharton,  6  H.  L. 
Cas.  238;  Fitzmaurice  v.  Bayley,  9'H.  L.  Cas.  78,  102;  Bau. 
mann  v.  James,  L.  R.  3  Ch.  A|)p.  508;  Shardlow  v.  Cotterell, 
18  Ch.  Div.  280;  20  Ch.  Div.  90;  Studds  ?;.  Watson,  28  Ch. 
Div.  305  ;  Oliver  v.  Hunting,  44  Ch.  Div.  205  ;  Long  v.  Millar, 
4  C.  P.  Div.  450;   Cave  v.  Hastings,  7  Q.  B.  Div.  125. 

The  defendants,  however,  contend  that  these  principles  apply 
only  to  papers  already  in  existence  when  the  instrument  signed 
by  the  party  sought  to  be  charged  is  executed  ;  and,  in  su[)port 
of  this  view,  rely  upon  the  case  of  Wood  v.  Midglev,  2  Smale  & 
G.  115,  no  appeal,  5  De  Gex,  M.  &  G.  41.  This  vvas  a  bill  for 
specific  performance  of  a  contract  of  sale  of  land.  Some  of  the 
terms  had  been  reduced  to  writing,  but  not  signed.  The  pur- 
chaser paid  his  deposit  money  to  the  auctionedr  who  sold  the 
land,  and  he  signed  t[)e  following  receipt:  "Memorandum. 
Mr.  Thomas  Midgley  has  paid  to  me  the  sum  of  £50  as  a  deposit, 
and  in  part  payment  of  £1,000  for  the  purchase  of  the  Ship  and 


LEASE  —  STATUTE    OF    FRAUDS.  103 

and  Camel  public  house  at  Dockhcad,  the  terms  to  be  expressed 
in  an  agreement  to  be  signed  as  soon  as  prepared."  Vice-Chan- 
cellor  Stuart  overruled  a  demurrer  to  the  bill,  on  the  ground  that 
the  memorandum  to  be  prepared  and  signed  was  only  the  fair 
copy  of  the  draft  as  settled  and  agreed  to.  On  appeal,  the 
demurrer  was  sustained  by  Lord  Justice  Turner  and  Lord  Justice 
Knight-Bruce,  on  the  ground  that  the  agreement  referred  to, 
although  it  fixed  the  price,  left  other  points  to  be  determined. 
"  The  conditions  of  sale  were  to  be  adapted  to  a  sale  by  private 
contract,  and  were  to  be  subject  to  a  future  agreement."  The 
case  is  therefore  one  of  an  agreement  incomplete  when  made,  and 
which  never  was  completed.  See,  also,  Ridgway  v.  Wharton, 
ubi  supra;  Fitzmaurice  v.  Bayley,  uhi  si(p7'a;  Rummens  v. 
Robins,  3  De  Gex,  J.  &  S.  88.  In  Brown  v.  Bellows,  4  Pick. 
179,  the  plaintiff  and  the  defendant  were  owners  of  a  water  priv- 
ilege, with  the  building  thereon,  etc.  The  plaintiff  agreed  to  sell 
his  interest,  and  the  defendant  agreed  to  buy  it,  "  at  such  prices 
as  shall  be  agreed  on  and  awarded  by  three  men,  one  chosen  by 
the  plaintiff,  one  by  the  defendant  and  the  third  by  the  two  thus 
chosen,  which  award  shall  be  final  and  binding  on  the  parties." 
After  the  price  had  been  thus  determined  in  W'ritiug,the  defend- 
ant refused  to  perform  his  agreement.  The  plaintiff  brought 
an  action  for  covenant  broken,  to  which  the  defendant  set  up 
the  statute  of  frauds,  contending  that  the  referees  were  not 
named  in  the  agreement,  and  that  it  depended  whollyupon  parol 
evidence  to  determine  who  they  were.  This  objection  was  dis- 
posed of  by  the  court,  saying  that  the  contract  had  been  per- 
formed in  this  respect.  The  defendant  further  contended  that 
the  price  should  have  been  fixed  by  the  agreement,  whereas  it 
was  to  be  ascertained  by  the  referees.  But  this  objection  was 
overruled.  The  last  point  decided  in  this  case,  therefore,  is  a 
direct  authority  for  the  proposition  that  it  is  no  objection  to  a 
written  contract  that  some  of  the  terms  are  to  be  fixed  by  some- 
thing to  be  done  in  the  future,  if  that  something  is  done  before 
action  is  brought;  and  that,  if  it  is  in  writing,  the  provisions  of 
the  statute  of  frauds  are  complied  with.  We  are  therefore 
of  opinion  that  the  statute  of  frauds  is  no  defense  to  this 
action. 

2.  The  defendants  further  contend  that  the  plaintiffs  are  not 
entitled  to  recover,  because  they  have  not  performed  their  part 
of  the  agreement.  It  appears  from  the  report  that  the  plaintiffs 
on  February  11,  1889,  sent  to  the  defendants  a  letter  in  regard 
to  the  rooms  in  the  new  building,  and  in  regard  to  their  lease,  to 
which  letter  the  defendants  made  no  reply.  There  was  evidence 
that  duplicate  leases  were  sent  to  the  defendant  Ritz  about  Feb- 


104  ESTATES    LESS    THAN   FREEHOLD. 

ruary  15,  1880;  that  he  afterwards  sent  one  of  them  to  the 
defendant  Glines;  that  these  leases  were  in  the  possession  of  the 
defon(hints  at  the  time  of  the  trial;  that  tlie  plaintiffs  had  not 
seen  or  heard  from  Kitz  after  sendinf^  the  leases;  tliat  two  or 
three  wetiks  after  February  15th,Glines  had  called  on  the  plain- 
tiffs, and  said  that  he  was  ready  to  sign,  hut  Ritz  would  not,  and 
that  l\itz  would  not  go  in  comi)any  with  him;  that  neither  de- 
fendant had  signed  the  lease  or  offered  to  sign  any  foi'tn  of  lease. 
Glines,  who  was  called  as  a  witness  by  the  plaintiffs,  testified 
that  Kitz  declined  to  have  anything  to  do  with  him  in  this  mat- 
ter ;  and  that  he  (Glines)  had  stiid  that  he  could  not  sign  because 
Ritz  would  not,  as  he  had  not  the  money  to  carry  it  out  if  he 
did  sign.  It  was  agreed  that,  prior  to  the  bringing  of  the  writ, 
the  defendants  had  said  to  the  plaintiffs  that  they  should  not 
sign  the  lease,  and  the  plaintiffs  might  go  ahead  and  let  the 
rooms.  The  defendants'  counsel  pointed  out,  at  the  argument, 
several  particulars  in  which,  as  they  contended,  the  lease  sent 
to  the  defendants  differed  from  the  form  annexed  to  the  agree- 
ment. We  do  not  find  it  necessary  to  consider  these,  as  we  are 
of  opinion  that,  on  the  evidence,  the  jury  might  well  have  found 
that  the  defendant  made  no  objection  to  the  lease  sent  them, 
were  not  willing  to  accept  a  lease  in  any  form,  and  therefore 
waived  a  strict  compliance  by  the  plaintiffs  with  the  terms  of  the 
agreement.  See  Gerrish  v.  Norris,  9  Cush.  167,  as  modified  by 
Holdsworth  V.  Tucker,  143  Mass.  369,  375;  9  N.  E.  Rep.  764  ; 
Brewer  v.  Winchester,  2  Allen,  389;  Curtis  v.  Aspinwall,  114 
Mass.  187,  193;   Lowe  v.  Harwood,  139  Mass.  133. 

3.  At  the  trial  the  presiding  judge  ruled  that  the  action  in  its 
present  form  could  not  be  maintained,  and  ordered  a  verdict  for 
the  defendants,  reserving  the  right  to  the  plaintiffs  to  move  to 
amend,  u})ou  such  terms  as  the  sui)erior  court  might  order,  if, 
in  the  opinion  of  the  supreme  judicial  court,  the  plaintiffs,  upon 
the  evidence,  would  have  a  right  to  recover  in  any  form  of  action 
at  law;  in  which  event  the  verdict  was  to  be  set  aside  and  the 
case  to  stand  for  trial.  At  the  argument  in  this  court,  no  objec- 
tion was  made  either  to  the  form  of  the  action  or  to  the  declara- 
tion. We  have  not,  therefore,  carefully  scrutinized  either.  It 
is  obvious,  however,  that,  as  the  contract  declared  on  is  incom- 
plete in  itself,  the  terms  of  the  lease  to  the  plaintiffs  from  their 
lessor,  as  far  as  they  are  material  to  complete  the  contract, 
should  be  set  forth  with  appropriate  allegations;  and  that,  if 
the  plaintiff  rely  upon  a  waiver  by  the  defendants,  it  should  be 
pleaded  as  an  excuse  for  non-performance.  Palmer  v.  Sawyer, 
114  Mass.  1,  15.  Whether  the  substitute  declaration,  so-called, 
sets  forth  a  waiver,  need  not  be  considered,  as  the  point  has  not 


ASSIGNMENT  AND  SUBLETTING.  105 

been  argued.     The  result  is,  therefore,  tluit  the  verdict  is  to  be 
set  aside,  mid  the  ca^e  stand  for  trial.     So  ordered. 


'  Assignment  ami  Subletting. 

Sexton  V.  Chicaico  Storage  Co.,  129  111.  318;  21  N.  E.  920. 

Appeal  from  appellate  coiut,  first  district. 

Bill  brought,  in  the  superior  court  of  Cook  County,  by  Patrick 
J.  Sexlon,  in  his  own  behalf,  as  well  as  in  behalf  of  such  other 
of  the  creditors  of  the  Chicago  Storage  Company  as  should  come 
in  and  make  themselves  parlies  and  contribute  towards  the  costs 
of  suit,  against  the  Chicago  Storage  Company,  a  corporation, 
and  Charles  N.  Chipman,  Alfred  Willford,  James  B.  Craney, 
John  C.  Magce,  Charles  G.  Barth,  W.  R.  Parks,  David  Cole, 
and  Kenneth  li.  Smoot,  its  stockholders,  to  dissolve  the  corpo- 
ration, on  the  ground  that  it  had  ceased  doing  business,  leaving 
del)ts  unpaid  ;  and  to  enforce  the  payment  of  its  debts  against 
the  stockholders.  Complainant's  claim  against  the  corporation 
arose  as  follows:  May  1,  1885,  he  leased  to  Frank  F.  Cole,  by 
two  separate  leases  for  different  parts  of  the  building,  a  certain 
buildmg  in  the  city  of  Chicago,  for  the  term  of  three  years,  at 
a  monthly  rental  of  $466.6(5.  May  9,  1885,  Cole  leased  the 
same  premises  to  the  Chicago  Storage  Company,  for  the  whole 
expired  term,  at  a  rental  of  |300per  month  for  the  first  year,  $500 
per  month  for  the  second  year,  and  $650  per  month  for  the  third 
year.  This  lease  reserved  a  right  of  forfeiture  and  re-entry  for 
non-payment  of  rent  or  other  breach  of  its  conditions,  and  con- 
tained a  covenant  to  surrender  the  premises  to  Cole  at  the  ex- 
piration of  the  term,  or  sooner  determination  of  the  lease. 
Complainant's  suit  was  based  upon  the  theory  that  this  instru- 
ment was,  in  effect,  an  assignment  of  the  leases  from  himself  to 
Cole,  making  the  corporation  liable  to  him  for  the  rent  reserved 
in  these  leases.  The  superior  court  held  that  the  instrument 
was  a  sublease,  and  that  the  corporation  was  therefore  not  in- 
debted to  complainant,  and  accordingly  dismissed  the  bill  for 
want  of  equity.  The  appellate  court  affirmed  the  decree.  Com- 
plainant appeals. 

ScHOLFiELD,  J.  The  cvideuce  sufficiently  proves  that  '*  the 
Chicago  Storage  Company  has  ceased  doing  business."  This  is 
not  contested  by  counsel  for  appellees,  though  they  seek  to  avoid 
its  effect  by  the  circumstance  which  they  claim  to  be  proved, 
that  such  failure  is  solely  because  of  the  seizure  and  appropria- 
tion of  the  property  for  the  payment  of  rent  due  from  Frank  F. 
Cole  alone  to  appellant.     It  is  therefore  manifest  that  in  deter- 


106  ESTATES    LESS    THAN   FREEHOLD. 

mining  whether  the  corporation  has  left  debts  unpaid,  so  as  to 
bring  the  case  within  section  25,  c.  32,  Rev.  St.  1H74,  as 
amended  by  the  act  of  May  22,  1877,  in  rehition  to  corporations 
(Laws  1877,  p.  06),  the  first  and  most  important  question  is 
whether  the  storage  company  is  an  assignee  of  the  term  of  Frank 
F.  Cole,  or  only  a  sublessee  under  him,  for,  if  it  is  an  assignee 
of  the  terra  of  Frank  F.  Cole,  it  stands  in  his  shoes  as  respects 
covenant  to  pay  rent,  and  its  property  is  liable  to  be  seized  and 
appropriated  to  the  payment  of  the  rent  by  distress,  as  was  done. 
If,  however,  it  is  but  a  sublessee  under  Frank  F.  Cole,  it  is  liable 
only  on  its  covenants  to  him. 

The  leases  to  Frank  F.  Cole  are  "  for  and  during  "  the  terms 
named,  "  and  until  the  1st  day  of  May,  1888."  The  lease  exe- 
cuted by  Frank  F.  Cole  to  the  Chicago  Storage  Company  is  of 
precisely  the  same  premises  included  by  the  leases  to  him,  and 
it  is  in  the  identical  language  of  those  leases,  "  for  and  during" 
the  term  named  "and  until  the  1st  day  of  May,  1888;"  so 
that  the  terms  all  end  at  the  same  instant  of  time.  No  space 
of  time,  however  minute,  therefore,  can  by  any  possibility 
remain  after  the  term  of  the  storage  company  has  ended 
before  the  expiration  of  the  term  of  Cole,  in  which  he  could 
enter  upon  or  accept  a  surrender  of  the  premises.  The  general 
principle  as  held  by  all  the  authorities  is  that,  where  the 
lessee  assigns  his  whole  estate,  without  reserving  to  himself  a 
reversion  therein,  a  privy  of  estate  is  at  once  created  between 
his  assignee  and  the  original  lessor,  and  the  latter  then  has  a 
right  of  action  directly  against  the  assignee  on  the  covenants 
running  with  the  land,  one  of  which  is  that  to  pay  rent;  but  if 
the  lessee  sublets  the  premises,  reserving  or  retaining  any 
reversion,  however  small,  the  privity  of  estate  between  the 
sublessee  and  the  original  landlord  is  not  established,  and  the 
latter  has  no  right  of  action  against  the  former,  there  being 
neither  privity  of  contract  nor  privity  of  estate  between  them. 
The  chief  difficulty  has  been  in  determining  what  constitutes 
such  reservation  of  a  reversion.  The  more  recent  English 
decisions,  and  all  of  the  text-books  treating  of  the  question 
which  have  been  accessible  to  us  hold  that,  where  all  of  the 
lessee's  estate  is  transferred,  the  instrument  will  operate  as  an 
assignment  notwithstanding  that  words  of  devise  instead  of 
assignment  are  used,  and  notwithstanding  the  reservation  of  a 
rent  to  the  grantor,  and  a  right  of  re-entr}'  on  the  non-payment 
of  rent  or  the  non  performance  of  the  other  covenants  con- 
tained in  it.  1  Piatt  Leases,  1-9,  102;  Woodf.  Landl.  &  Ten. 
(7th  Ed.)  211;  Wood  Landl.  &  Ten.,  p.  131,  §  93;  Tayl. 
Landl.  &  Ten.  (8th  Ed.  )16,  note  3  ;  Bac.  Abr.  tit.     "  Leases," 


ASSIGNMENT  AND    SUBLETTING.  107 

H.  3;  2  Prest.  Conv.  124,  125;  Beardman  v.  Wilson,  L.  R.  4. 
C.  P.  57;  Doe  v.  Batemaii,  2  Bani.  &  Aid.  158;  Wollaston  v. 
Hakewill,  3  Scott  N.  R.  61(5.  Undoubtedly  many  cases  may  be 
found  wherein  the  lessee  has  granted  to  another  party  his  en 
tire  term,  retaining  no  reversionary  interest  in  himself;  and  it 
has  been  held  that  the  relation,  as  between  the  parties,  was  that 
of  landlord  and  tenant,  or,  peihaps  more  correctly,  lessee  and 
sublessee,  because  such  was  clearly  the  intention  of  the  parties ; 
but  this  was  the  result  of  contract  only,  and  not  conclusive  upon 
the  original  landlord,  since  he  was  not  a  party  to  it.  The  rela- 
tion of  landlord  and  assignee  of  a  term,  however,  it  has  been 
seen,  does  not  result  from  contract,  but  from  privity  of  estate, 
and  theiefore,  when  the  original  lessee  has  divested  himself  of 
his  entire  term  and  thus  ceased  to  be  in  privity  of  estate  with 
the  original  landlord,  the  person  to  whom  he  has  transferred 
that  entire  term  must  necessarily  be  in  privity  of  estate  with  his 
original  landlord,  and  hence  liable  as  assignee  of  the  term.  See 
Wood  Landl.  &  Ten.  122,  and  authorities  cited  in  note  1;  Van 
Rensselaer  v.  Hays,  19  N.  Y.  68;  Pluck  v.  Digges,  5  Bligh  (n. 
6.),  31;  Thorn  V.  Wollcombe,  3  Barn.  &  Adol.  586;  Carpen- 
ters' Union  V.  Railway  Co.,  45  Ind.  281 ;  Smiley  v.  Van  Winkle, 
6  Cal.  605;  Blumenberg  v.  Myres,  32  Cal.  93;  Schilling  v. 
Holmes,  23  Cal.  230. 

Counsel  for  appellees  contend,  and  the  courts  below  ruled  ac- 
cordingly, that  the  reservation  of  a  new  and  different  rent,  or  the 
reservation  to  the  lessor  of  the  right  to  declare  the  lease  void 
for  the  non-performance  of  its  covenants,  and  to  re-enter  for  such 
breach,  or  at  the  end  of  the  terra  coupled  with  the  covenant  of 
the  lessee  to  surrender  at  the  end  of  the  term  or  upon  forfeiture 
of  the  term  for  breach  of  covenant,  make  the  letting  by  the  lessee 
a  subletting  and  not  an  assignment  of  the  term,  notwithstanding 
the  lessee  has  retained  in  himself  no  part  of  the  term  ;  and  they 
rely  upon  Collins  v.  Hasbronck,  56  N.  Y.  157  ;  Ganson  v.  Tifft,  71 
N.  Y.48;  McNeil  v.  Kendall,  128  Mass.  243;  and  Dunlapv.Bul- 
lard,  131  Mass.  161,  as  sustaining  this  contention.  There  is  gen- 
eral language  in  Collins  v.  Hasbrouck  quite  as  broad  as  claimed; 
but  noquestion  therein  presented  called  for  its  use,  and  its  meaning 
ought  to  be  limited  by  the  facts  to  which  it  was  applied.  There 
the  first  original  lease  was  for  the  term  of  10  years  from  the  1st  of 
April,  1864;  the  second  was  for  the  term  of  9  years  from  (he 
1st  of  April,  1865.  Thus  both  expired  April  1,  1874.  The 
sublease  was  for  the  term  of  two  years  and  seven  months  from 
the  1st  of  September,  1867, —  that  is  to  say,  until  the  1st  of 
April,  1870, —  with  the  privilege,  however,  to  the  lessee  to  ex- 
tend the  term  four  years,  or  until  April  1,  1874,  by  giving  two 


108  ESTATES    LESS   THAN    FREEHOLD. 

months'  notice,  etc.  The  plaintiff  claimed  that  the  leases  were 
forfeited  by  subletting,  and  the  court  so  held.  No  distinction 
was  taken,  in  the  opinion  of  the  court,  between  an  absolute 
demise  until  the  end  of  the  term  and  a  more  privilege  to  have  the 
demise  extended  four  years,  which  was  until  the  end  of  the  term. 
We  have  held  that  a  similar  chaise  in  a  lease  is  not  a  present 
demise,  but  a  mere  covenant,  which  may  ho  specifically  enforced 
in  chancery,  or  upon  which  an  action  at  law  may  be  maintained 
for  a  breach  of  covenant.  Hunter  v.  Silvers,  15  III.  174; 
Sutherland  v.  Goodnow,  108  111.  528.  And  it  would  seem  quite 
evident  that  in  no  view  could  the  reversion  have  passed  until 
after  the  grantee  elected  to  have  the  term  for  four  years  longer; 
and  so  when  the  lease  was  executed,  there  was  still  a  rever- 
sionary interest  in  the  sublessor,  of  four  years,  subjected, 
though  it  may  have  been,  to  be  thereafter  divested  by  the 
election  of  the  sublessee.  In  Ganson  v.  Tifft,  the  sublease 
provided  that  at  the  expiration  of  the  term,  or  other  sooner 
determination  of  the  demise,  the  lessee  should  surrender  the  de- 
mised premises  to  the  lessors,  and  the  court  said:  "  This  con- 
stitutes a  sublease  of  the  premises,  and  not  an  assignment  of 
the  term."  In  Stewart  v.  Railroad  Co.,  102  N.  Y.  601  ;  8  N. 
E.  Rep,  200,  there  was  a  demise  by  the  lessee  to  the  Long  Island 
Railroad  Company  for  a  term  longer  than  that  held  by  the  lessee. 
There  was  also  a  different  rent  to  be  paid  than  that  provided  to 
be  paid  by  the  original  lease,  and  there  was  a  reservation  of  the 
right  to  re-enter  for  non-payment  of  rent,  etc.  It  was  held  that, 
as  to  the  original  landlord,  this  amounted  to  an  assignment  of 
the  lease,  and  that  its  character  was  not  destroyed  by  the 
reservation  therein  of  a  new  rent  to  the  assignor  with  a  power 
of  re-entering  for  non-payment  of  rent,  or  by  its  assumption  of 
the  character  of  a  sublease.  The  court,  after  laying  down  the 
rule  substantially  as  we  have  heretofore  stated  it  to  be  recognized 
by  the  text-books  and  recent  English  decisions,  said  :  "  The  ef- 
fect, therefore,  of  a  demise  by  a  lessee  for  a  period  equal  to  or 
exceeding  his  whole  term  is  to  divest  him  of  any  reversionary 
right  and  render  his  lessee  liable,  as  assignee,  to  the  original 
lessor ;  but  at  the  same  time  the  relation  of  landlord  and  tenant 
is  created  between  the  parties  to  the  second  demise,  if  they  so 
intended  ;  "  citing  Tayl.  Landl.  &  Ten.  (7th  Ed.),  §  109,  note; 
Id.,  §  16,  note  5^  1  Washb.  Real  Prop.  (4th  Ed. )  515,  note  6  ; 
Adams  V.  Beach,  1  Phila.  99,  178  ;  Carpenters'  Union  v.  Rail- 
way Co.,  45  Ind.  281 ;  Lee  V.Payne,  4  Mich.  106;  Lloyd  v. 
Cozens,  2  Ashm.  138;  Wood  Landl.  &  Ten.  (Banks' 'Ed.) 
547,  —  and  then  adding:  "These  rules  are  fully  recognized  in 
this  State.     Prescott  v.  De  Forest,  16   Johns.  159;   Bedford  v. 


ASSIGNMENT    AND    SUBLETTING.  109 

Terhuno,  30  N.  Y.  457  ;  Davis  v.  Morris,  36  N.  Y.  569;  Wood- 
hull  V.  Kosentlial,  61  N.  Y.  382,  391,392."  In  speakingof  the 
ruling  in  Collins  v.  Ilasbrouck,  ,s?//;?'a,  after  stating  the  facts,  the 
conrt  said:  "  In  the  opinion,  the  question  is  discussed  whether 
the  suhliaso  amounted  to  an  assignment  of  the  term  of  the 
original  lease,  or  a  mere  subletting  or  reletting  of  part  of  the 
demised  premises.  This  question,  in  view  of  the  result  reached 
on  the  question  of  waiver,  ceased  to  be  controlling;  but,  in  dis- 
cussing it,  the  learned  judge  delivering  the  opinion  made  some 
remarks  touching  the  effect  of  reserving  a  new  rent  in  the  sub- 
lease, and  of  reserving  to  the  original  lessee  a  right  of  re-entry 
for  a  breach  of  condition  by  his  lessee,  which  have  given  rise 
to  some  confusion.  The  features  of  the  instrument  which  are 
above  referred  to  would  be  proper  subjects  of  consideration  for 
the  purpose  of  determining  whether  the  relation  of  landlord  and 
tenant  was  created  as  between  the  original  lessee  and  his  lessee, 
and  bore  upon  the  question  then  before  the  court,  viz.,  whether 
the  second  lease  was  a  subletting  or  reletting  of  part  of  the 
demised  premises,  which  constituted  a  breach  of  the  covenant 
not  to  sublet  or  relet.  But  the  question  of  privity  of  estate 
between  the  original  lessor  and  the  lessee  of  his  lessee  was  not 
in  the  case.  The  determination  of  the  question  depends  upon 
whether  the  whole  of  the  term  of  the  original  lessee  became 
vested  in  his  lessee,  and  the  circumstances  that  the  second  lease 
reserves  a  ditFerent  rent  or  a  rigUt  to  enter  for  breach  of  condi- 
tion are  immaterial."  And,  after  quoting  many  authorities  to 
sustain  that  position,  the  opinion  proceeds:  "  The  cases  which 
hold  that  where  a  lessee  subleases  the  demised  premises  for  the 
whole  of  his  term,  but  his  lessee  covenants  to  surrender  to  him 
at  the  end  of  the  term,  the  sublease  does  not  operate  as  an  as- 
signment, proceed  upon  the  theory  that,  by  reason  of  this  cove- 
nant to  surrender,  some  fragment  of  the  term  remains  in  the 
original  lessor.  In  most  of  the  cases,  and  in  the  earlier  cases  in 
which  this  doctrine  was  broached,  the  language  of  the  covenant 
was  that  the  sublessee  would  surrender  the  demised  premises  on 
the  last  day  of  the  term." 

It  is  true  that  in  this  case,  as  has  been  before  stated,  the  lessee 
demised  for  a  number  of  years  beyond  the  term  for  which  he 
held;  but  it  is  impossible  that,  upon  principle,  there  can  be  any 
difference  between  a  demise  of  an  entire  term,  which  can  leave 
no  possible  space  of  time  remaining  in  the  lessor,  and  a  demise 
for  any  additional  time  beyond  the  term;  for,  since  no  one 
can  demise  what  he  does  not  have,  all  that  can  pass  by  the 
demise  in  the  latter  instance  is  the  entire  term  of  the  lessor.  If, 
here,  the  demise  of  Frank  F.  Cole  vests  his  entire  interest  in  the 


110  ESTATES    LESS   THAN   FREEHOLD. 

property,  as  it  professes  to  do,  "  for  and  during  "  the  remain- 
der of  iii.s  term,  "  and  until  the  1st  day  of  May,  1888,"  it  can- 
not l)e  that  any  other  portion,  iiowever  short  in  duration,  of  the 
term  granted  him  b}''  the  leases  of  appellant,  remained  in  him, 
because  they  are  limited  by  the  same  words  precisely,  namely, 
''for  and  during"  the  term,  "and  until  the  1st  day  of  May, 
1888."  In  McNeil  v.  Kendall,  supra,  there  were  easements  re- 
served from  the  effect  of  the  lease.  In  Dunlap  v.  BuUard,  supra, 
however,  the  facts  arc  analogous  in  principle  to  those  here 
involved;  and  it  was  held  that  the  demise  of  the  entire  term  of 
the  lessee  was  a  sublease  and  not  an  assignment,  because  of  the 
right  reserved  in  the  lease  for  the  lessor  to  re-enter  and  resume 
possession  for  a  breach  of  the  covenants.  But  this  is  held  upon 
the  ground  that,  under  the  decisions  of  that  court,  the  right  to 
re-enter  and  forfeit  the  lease  is  a  contingent  reversionary  estate 
in  the  property  ;  the  court  having  previously  held,  in  Austin  v. 
Parish,  21  Pick.  215-223,  and  Church  v.  Grant,  3  Gray,  142-147, 
that,  where  an  estate  is  conveyed  to  be  hold  by  the  grantee 
upon  a  condition  subsequent,  there  is  left  in  the  grantor  a  con- 
tingent reversionary  interest,  which  is  an  estate  capable  of 
devise.  It  has  been  suggested  that  these  decisions  are  predi- 
cated upon  a  local  statute  (see  Tied.  Real  Prop,  note  1  to 
section  277,  and  note  1,  page  904,  6  Amer.  &  Eng.  Cyclop. 
Law),  but  whether  this  be  true  or  not,  the  decisions  are 
plainly  contrary  to  the  principles  of  the  common  law.  The 
right  to  enter  for  breach  of  condition  subsequent  could  not  be 
alienated,  as  it  could  have  been  had  it  been  an  estate;  and  Coke 
says:  **  The  reason  hereof  is  for  avoiding  of  maintenance,  sup- 
pression of  right,  and  stirring  up  of  suits;  and  therefore  nothing 
in  action,  entry  or  re-entry  can  be  granted  over."  Co.  Lit., 
§  347  (214a).  See  also,  1  Com.  Dig.  tit.  "  Assignment,"  C  2, 
p.  688;  3  Com.  Dig.  tit.  "Condition,"  O  1,  p.  124;  4  Kent. 
Comm.  (8th  Ed.)  126,  123;  1  Brest.  Est.  20,  21;  Shep.  Touch. 
117,  121.  It  is  said  in  1  Washb.  Real  Prop.  (2d  Ed. )  474,  451  ; 
"Such  a  right  [^.  e.,  to  enter  for  breach  of  condition  subse- 
quent] is  not  a  reversion,  nor  is  it  an  estate  in  land.  It  is  a 
mere  chose  in  action,  and  when  enforced,  the  grantor  is  in  by 
the  forfeiture  of  the  condition,  and  not  by  the  reverter."  To 
like  effect  is,  also.  Tied.  Real.  Prop.,  §  277;  6  Amer.  &  Eng. 
Cyclop.  Law,  903;  Tayl.  Landl.  &Ten.  (8th  Ed.),  §  293  ;  South- 
ard V.  Railroad  Co.,  26  N.  J.  Law,  11;  Webster  v.  Cooper,  14 
How.  501  ;  Schulenberg  v.  Harriman,  21  Wall.  63;  Nicoll  v. 
Railroad  Co.,  12  N.  Y.  121.  It  is  true  that,  by  section  14  of 
our  statute  in  relation  to  landlord  and  tenant  (Rev.  St.  1874,  p. 
659),    "the  grantees  of  any  demised  lands,  tenements,  rents, 


ASSIGNMENT    AND    SUBLETTING.  Ill 

or  other  hereditaments,  or  of  the  reversion  thereof,  the  as- 
signees of  the  lessor  of  any  demise,  and  the  heirs  and  personal 
representatives  of  the  lessor,  grantee  or  assignee,  shall  have  the 
same  remedies,  by  entry,  action,  or  otherwise,  for  the  non-per- 
formanco  of  any  agreement  in  the  lease,  or  for  the  recovery  of 
any  rent,  or  for  the  doing  of  any  waste  or  other  cause  of  for- 
feiture, as  their  grantor  or  lessor  might  have  had  if  such  rever- 
sion had  remained  in  such  lessor  or  grantor."  But  this  does 
not  make  wh;it  was  before  but  a  chose  iu  action  an  estate.  The 
right  to  enter  for  breach  of  covenant  is  still  but  a  remedy  for 
enforcing  performance  of  a  contract,  which  may  be  defeated  by 
tender.  Tayl.  Land.  &  Ten.  (8th  Ed. )  302.  As  is  said  by  the 
court  in  De  Peyster  v.  Michael,  6  N.  Y.  507,  in  speaking  of  the 
effect  of  a  like  statute  of  New  York ;  *'  The  statute  only  author- 
ized the  transfer  of  the  right,  and  did  not  convert  it  into  a 
reversionary  interest,  nor  into  any  other  estate."  See,  also, 
Nicoll  V.  Railroad  Co.,  12  N.  Y.,  at  p.  139.  It  follows  that,  in 
our  opinion,  the  rule  assumed  to  be  followed  in  Collins  v.  Has- 
brouck,  Ganson  v.  Tifft,  and  Dunlap  v.  Bullard,  supra,  is  not 
in  conformity  with  the  common  law,  and  that  it  cannot,  there- 
fore, be  applied  here. 

The  objection  that  the  written  assent  of  appellant  was  not 
obtained  to  the  assignment  cannot  be  urged  by  appellees.  The 
clause  in  the  leases,  in  that  respect,  is  for  the  benefit  of,  and  can 
be  set  up  by  appellant  alone.  He  may  waive  it  if  he  will ;  and, 
if  he  does  not  choose  to  set  it  up,  no  one  else  can.  Webster  v. 
Nichols,  ]04  111.  160;  Willoughby  v.  Lawrence,  116  111.  11;  4 
N.  E.  Rep.  356  ;  Arnsbv  v.  Woodward,  6  Barn.  &  C.  519  ;  Rede 
V.  Farr,  6  Maule  &  S.  121. 

But  counsel  insist  that  appellant  is  estopped,  by  his  conduct, 
to  now  allege  that  the  instrument  executed  by  Frank  F.  Cole  is 
an  assignment.  We  have  carefully  considered  the  evidence  bear- 
ing upon  this  question,  and  we  are  unal)le  to  concur  in  this  view. 
Appellant  did  refuse  to  acquiesce  in  the  construction  placed  by 
appellees  upon  the  lease  of  Frank  F.  Cole,  and  to  settle  with 
them  upon  that  basis.  He  refused  to  release  Frank  F.  Cole,  and 
accept  the  storage  company  alone;  and  he  refused  to  accept  the 
amount  of  rent  which  the  storage  company  obligated  itself  to 
pay  Frank  F.  Cole  as  a  satisfaction  of  Frank  F.  Cole's  covenant 
to  pay  rent  to  him;  but  he  was  all  the  time  willing  that  the 
storage  company  should  remain  in  possession,  provided  the  rent 
due  him  by  his  lease  to  Frank  F.  Cole  was  paid  to  him.  He 
knew  the  terms  of  the  lease  of  Frank  F.  Cole  to  the  storage 
company,  and  he  afterwards  received  rent  from  it,  and  permitted 
it  to  remain  in  possession.     The  lessee  continues,  notwithstand- 


112  ESTATES    LESS    THAN    FREEHOLD. 

ingthe  assignment,  liable  upon  his  express  covenant  to  pay  rent; 
and  the  assignee  becomes  liable  upon  the  same  covenant,  by  rea- 
son of  his  privity  of  estate,  because  that  covenant  runs  with  the 
land.  Tayl.  Landl.  &  Ten.  (8th  ed.),  §  438;  2  Plait  Leases, 
356;  Walton  v.  Cronly,  14  Wend.  (53;  Bailey  v.  Wells,  8  Wis. 
141.  Since  appellant  might  sue  Cole,  on  his  express  covenant 
to  pay  rent,  and  he,  having  fled  the  State,  take  out  an  attach- 
ment in  aid  thereof,  we  perceive  no  reason  why  he  might  not  at 
the  same  time  take  garnishee  process  against  the  storage  com- 
pany, and  recover  any  debt  which  it  owed  him.  There  is  cer- 
.tainly  nothing  in  this  inconsistent  with  his  ultimately  enforcing 
his  liability  against  that  company  as  assignee  of  Cole's  term.  It 
is  not  shown  that  the  storage  company  has  been,  by  anything 
done  or  said  by  appellant,  induced  to  do  to  its  prejudice  any- 
thing that  it  would  not  otherwise  have  done.  No  judgment  has 
been  recovered  against  it,  as  garnishee  of  Frank  F.  Cole,  for 
rent  due  from  it  to  Frank  F.  Cole,  nor  does  it  appear,  otherwise, 
to  have  been  compelled  to  pay  money  or  incur  liability  by  reason 
of  any  act  or  word  of  appellant  proceeding  upon  the  recognition 
of  its  being  liable  to  Frank  F.  Cole,  as  such  lessee,  only.  For 
the  reasons  given,  the  decree  of  the  superior  court,  and  the 
judgment  of  the  appellate  court,  are  reversed,  and  the  cause  is 
remanded  to  the  superior  court  for  further  proceedings  consistent 
with  this  opinion. 

No    Implied    Warranty    of    Landlord   that  Premises  are  not 
Dangerous  or  Unfit  for  Occupation. 

Doyle  V.  Union  Pac.  Ry.,  147  U.  S.  413. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

In  the  early  part  of  November,  A.  D.  1883,  Marcella  Doyle,  a 
widow  with  a  family  of  six  children,  agreed  with  the  Union  Pacific 
Kadroad  Company  to  occupy  the  company's  section  house  situ- 
ated on  the  line  of  the  railroad  at  or  near  Woodstock,  in  the 
county  of  Chaffee  and  State  of  Colorado,  and  to  board  at  said 
section  house  such  section  hands  and  other  em[)loyees  of  the  com- 
pany as  it  should  desire  at  the  rate  of  $4.50  per  week,  to  be  paid 
by  the  persons  so  to  be  boarded,  and  the  company  agreed  to  aid 
her  in  collecting  her  pay  for  such  board  by  retaining  the  same 
for  her  out  of  the  wages  of  the  employees  so  to  be  boarded. 

Mrs.  Doyle  moved  with  her  children  into  the  section  house, 
and  continued  in  the  discharge  of  her  duties  as  boarding  house- 
keeper until  the  10th  day  of  March,  A.  D.  1884,  when  a  snow- 
slide  overwhelmed  the  section  house,  injured  Mrs.  Doyle,  and 
crushed  to  death  the  six  children  residing  with  her. 


IMPLIED    WARRANTY    AS    TO     CONDITION    OF     PREMISES.        Il3 

Subseqiientl}',  Marcella  Doyle  brought,  in  the  circuit  court  of 
the  United  States  for  tiie  district  of  CoK)rado,  two  actions  against 
the  Union  Pacific  Railway  Company  —  one  for  her  personal  in- 
juries ;  the  other  for  damages  suffered  by  her  in  the  loss  of  her 
children  —  and  which  latter  action  was  based  on  a  statute  of  the 
State  of  Colorado. 

The  actions  resulted  in  verdicts  and  judgments  in  favor  of  the 
defendant  company,  and  the  cases  have  been  brought  to  this 
court  by  writ  of  error.  As  the  cases  turn  upon  the  same  facts 
and  principles  of  law,  they  can  be  disposed  of  together. 

The  record  discloses  that  the  facts  of  the  case,  as  claimed  by 
the  respective  parties,  and  certain  admissions  by  the  defendant 
company,  were  stated  in  a  bill  of  exceptions,  and  upon  which 
instructions  by  the  court  were  given  which  are  made  the  subject 
of  the  assignment  of  error. 

The  bill  of  exceptions  was  as  follows:  — 

"  Be  it  remembered  that  on  the  trial  of  this  cause,  at  the 
November  terra,  A.  D.  1886,  of  the  said  circuit  court,  the  de- 
fendant admitted,  and  such  admissions  were  received  in  evidence 
before  the  jury  : 

'*  That  the  plaintiff  was  at  the  several  times  named  in  the  com- 
plaint a  widow  and  the  mother  of  Martm  Doyle,  Andrew  Doyle, 
Christopher  Doyle,  Catherine  Doyle,  Marcella  Doyle  and  Maggie 
Doyle,  mentioned  and  named  in  the  complaint  as  the  children  of 
the  plaintiff,  and  as  having  each  and  all  been  killed  by  a  snow- 
slide  at  Woodstock  in  the  month  of  Mnrch,  A.  D.  1884. 

"  That  her  husband  and  the  father  of  said  children  had  died 
previously  to  their  death.  That  each  of  said  children  was  of  the 
age  and  sex  stated  in  the  complaint;  was  each  unmarried  and  had 
no  child  or  children,  and  had  each  lived  with  their  said  mother, 
making  their  home  with  her,  up  to  the  time  of  tlicir  death  ;  and 
were  each  then  living  with  the  plaintiff,  aiding  and  assisting  her 
in  and  about  making  a  living,  and  in  and  about  her  duties  and 
labors  in  the  keeping  of  the  section  house  of  the  defendant  at 
Woodstock,  in  the  county  of  Chaffee  and  State  of  Colorado, 
where  said  children  were  killed.  That  said  children  were  killed 
while  in  said  section  house,  on  the  10th  day  of  March,  A.  D. 
1884,  by  a  snowslide,  which  then  and  there  occurred  from  the 
mountain  side  above  said  section  house.  That  said  section  house 
was  l)uilt  and  used  by  the  defendant  as  and  for  a  section  house 
and  a  place  at  which  the  section  hands  of  defendant  who  should 
work  on  said  section  could  board  and  lodge. 

'*That  on  or  about  the  5th  day  of  November,  A.  D.  1883,  at 
the  instance  and  request  of  the  defendant,  and  for  the  mutual 
benefit  of  herself  and  the  defendant,  the  plaintiff  undertook  and 


114  ESTATES    LESS    THAN    FREEHOLD. 

agreed  with  the  defendant  to  keep  for  it,  during  its  will  and 
pleasure,  its  section  house  situated  at  or  near  Woodstock,  on 
the  line  of  its  railroad,  in  the  county  of  Chaffee  and  State  of 
Colorado.  That  by  the  t^aid  agieenieiit  between  her  and  the 
defendant  the  plaintiff  was  to  provide  and  furnish  board  at  said 
section  house  for  such  section  hands  and  other  employees  of  the 
defendant  as  it  should  desire,  at  the  rate  of  four  and  one-half 
dollars  per  week  to  be  paid  by  the  persons  so  furnished  with 
such  board;  but  the  defendant  was  to  aid  and  assist  the  plaintiff 
in  collecting  her  pay  for  such  board  by  stopping  and  retaining 
the  same  for  her  out  of  the  wages  of  those  so  furnished  with 
such  board.  The  plaintiff  thereupon,  to  wit,  on  the  said  5th  day 
of  November,  A.  D.  1883,  moved  into  said  section  house  with 
her  family,  and  entered  upon  the  discharge  of  her  duties  as  the 
keeper  thereof,  and  remained  there  in  the  discharge  of  such 
duties  until  the  occurrence  of  the  snowslide,  on  the  10th  of 
March,  A.  D.  1884.  That  the  defendant  did  not  at  any  time 
notify  or  appraise  the  plaintiff  or  either  of  her  said  children,  or 
cause  her  or  either  of  them  to  be  notified  or  appraised,  of  the 
danger  of  a  snowslide  or  snowslides  or  of  the  liability  of  a  snow- 
slide  or  snowslides  at  such  place  where  said  section  house 
then  was,  or  in  that  locality.  And  the  plaintiti',  further  to  main- 
tain the  issues  on  her  part,  introduced  evidence  tending  to  show 
that  said  section  house  was  a  one-story  frame  building,  and  was 
constructed  in  1882,  about  the  time  that  said  railroad  was  first 
operated  in  that  section  of  the  country ;  was  situated  in  the 
mountains,  near  the  base  of  a  high  and  steep  mountain,  and  in 
a  place  subject  to  snowslides,  and  dangerous  on  that  account. 
That  the  sides  of  the  mountain  at  the  base  of  which  was  the 
house  in  question  were  marked  by  the  tracks  of  former  snow- 
slides,  but  only  those  familiar  with  snowslides  and  their  effects 
would  know  what  the}^  meant.  That  the  defendant  was  aware 
of  said  danger  at  and  before  the  time  it  engaged  the  plaintiff 
to  keep  its  said  section  house.  That  the  plaintiff  and  her  said 
children  had  never  before  resided  in  a  region  of  country  sub- 
ject to  snowslides,  and  had  no  knowledge  of  snowslides 
or  of  their  indications,  or  of  the  danger  incident  thereto,  and 
was  not  aware  of  the  particular  danger  in  question.  That  there 
was  a  prominence  or  hip  on  this  mountain  side,  about  ten  or 
twelve  hundred  feet  above  the  section  house,  which  cut  off  a  view 
of  the  mountain  side  above  said  hip  from  the  section  house  or 
its  immediate  vicinity.  That  above  said  hip  there  was  a  large 
depression  or  draw  on  the  mountain  side  extending  from  said  hip 
to  the  summit,  into  which  great  quantities  of  snow  fell  and 
drifted  during  the  winter  season  of  each  year,  thus  tending  to 


IMPLIED    WARKANTY    AS    TO    CONDITION    OF    PREMISES.  115 

create  snowsliiles  of  (lunger  to  persons  in  said  section  house  or 
its  vicinity.  That  this  danger  was  not  apparent  even  to  a  person 
having  knowledgfc  of  snovvslides  and  their  causes  without  a  view 
or  examination  of  this  mountain  side  above  said  hip.  That  the 
altitude  of  said  section  house  was  about  10,200  feet,  and  of  the 
summit  of  said  mountain  nearly  12,000  feet.  That  the  snowfall 
there  was  great  in  the  winter  season  of  each  year,  and  that 
depressions  on  the  mountain  side  were  filled  with  snow  by  drift- 
ing. That  the  snowslide  of  March  10,  1884,  which  killed  the 
said  children,  proceeded  from  this  depression  al)Ove  said  hip. 
That  a  snowslide  of  less  dimensions,  and  of  less  scope  and 
extent,  occurred  there  in  February,  1883,  in  the  same  place  and 
from  the  same  source,  which  reached  to  within  about  two  hun- 
dred feet  of  said  section  house,  and  of  which  the  defendant  had 
knowledge  at  the  time  thereof. 

**  That  the  attention  of  the  superintendent  of  the  construc- 
tion of  said  railroad  and  of  said  section  house  was  called  to  the 
fact  of  such  danger,  at  or  about  the  time  said  section  house  was 
built,  by  one  of  the  civil  engineers  of  said  defendant  who  assisted 
in  locating  the  line  of  said  railroad. 

"That  her  said  son  Andrew  Doyle  was  an  employee  of  the 
defendant  —  a  section  hand  on  the  same  section  where  said  sec- 
tion house  was  located  —  at  the  time  he  was  so  killed  by  said 
snowslide.  That  the  plaintiff  and  her  said  children  were  in  said 
section  house  at  the  time  the  said  children  were  killed,  and  that 
neither  of  said  children  were  aware  of  said  danger  before  the 
said  snowslide  of  March  10,  1884,  occurred. 

"  That  through  this  prominence  or  hip  on  the  mountain  side 
there  was  a  chasm  or  draw  from  twenty  to  thirty  feet  wide, 
which  continued  on  down  to  the  section  house,  but  became 
wider  after  leaving  the  hip.  That  with  this  draw  another  draw 
united  about  midway  between  the  section  house  and  the  said  hip, 
and  formed  one  draw  from  their  point  of  union  to  the  section 
house. 

"That  this  mountain  is  a  part  of  the  range  of  mountains 
known  as  the  '  Continental  Divide,'  which  divides  the  waters  of 
the  Atlantic  from  those  of  the  Pacific.  At  this  point  above 
Woodstock  station  the  course  of  the  mountain  is  nearly  east  and 
west.  This  railroad  passes  this  mountain  by  means  of  a  tunnel 
called  '  Alpine  Tunnel,'  which  is  to  the  westward  of  a  line  north 
of  Woodstock,  and  descends  this  mountain  at  a  heavy  grade, 
along  the  side  thereof,  about  midway  between  the  section  house 
and  the  said  hip  on  the  mountain  (which  hip  is  termed  a  '  pro- 
jection of  rocks  '  by  some  of  the  witnesses),  and  passes  on  to  the 
eastward  of  Woodstock  a  considerable  distance,  where  it  turns, 


116  ESTATES   LESS  THAN  FREEHOLD. 

and,  forming  a  kind  of  horseshoe  shape,  runs  back  again  past 
Woodstock,  but  between  the  sectif)n  house  and  said  hip,  —  the 
section  house  being  below  and  distant  from  tiiis  lower  track 
about  two  hundred  and  thirty  feet;  and  the  two  tracks  forming 
this  horseshoe  are  both  between  the  section  house  and  said  hip, 
and  on  a  direct  line  from  the  section  house  up  to  the  hip.  The 
two  tracks  are  about  five  hundred  feet  apart,  the  u[)pcr  track 
being  about  seventy  feet  higher  in  point  of  altitude  where  they 
cross  this  line  from  the  section  house  to  the  hip  on  the  mountain 
side  above.  That  there  was  a  water  tank  on  the  upper  side  of 
the  lower  track  fifty  or  sixty  feet  to  the  westward  of  the  section 
house,  which  water  tank  was  injured  by  the  snowslide  of  Feb- 
ruary, 1883. 

"That  the  snowslide  of  March  10,  1884,  spread  out  as  it  de- 
scended the  mountain,  so  that  where  it  passed  over  the  lower 
railroad  track  its  space  in  width  was  six  or  seven  hundred  feet, 
and  the  section  house  was  not  far  from  the  center  of  said  snow- 
slide  track. 

"That  the  contour  of  this  mountain,  beginning  at  the  section 
house  and  ascending  the  mountain,  is  about  as  follows,  to  wit  : 
Above  the  seetion  house  it  slopes  slowly  to  the  first  railroad 
track;  then  there  is  a  rockslide;  then  there  is  a  bench  above 
that,  and  on  the  same  level  of  the  upper  railroad  track,  and 
above  that  a  steep  gorge,  and  on  each  side  of  said  gorge  there  is 
a  thin  belt  of  timber,  and  between  these  belts  of  timber  and 
along  the  gorge  there  is  a  space  from  three  to  four  hundred  feet 
in  width  of  nothing  but  rock,  with  a  very  steep  slope,  and  above 
this  slope  some  very  steep  rocks  (the  hip  on  tiie  mountainside), 
and  above  this  hip  is  a  large  basin  or  depression  extendingon  up 
the  mountain  side  three  or  four  thousand  feet  long  to  the  summit 
of  the  mountain,  which  has  an  elevation  or  altitude  of  about 
11,500  feet,  the  mountain  side  above  the  hip  being  very  steep, 
having  a  slope  of  more  than  thirty-three  degrees,  and  from  the 
hip  down  there  is  quite  a  precipitous  piece  of  rock,  not  perpen- 
dicular, but  quite  steep,  and  alter  or  below  that  the  slope  is  at  an 
angle  of  about  twenty-five  degrees.  In  the  basin  above  the  hip 
there  is  no  timber,  and  in  about  the  section  house  there  is  a 
space  of  eight  or  nine  hundred  feet  square  on  which  there  is  no 
timber  except  three  or  four  trees. 

"  That  the  timber  on  the  mountain  side  was  sparse  and  scat- 
tered. That  only  a  few  trees  were  carried  down  by  the  snow- 
slide.  That  snowslides  do  not  always  follow  beaten  tracks  made 
by  former  snowslides  on  the  same  mountain  side  but  frequently 
depart  therefrom.  That  the  snowslide  of  March  10,  1884, 
separated  into  broken  fragments  or  divisions  before  reaching  the 


IMPLIED    WARRANTY    AS    TO    CONDITION    OF    PREMISES.        117 

base  of  the  mountain,  one  of  which  struck  the  section  house, 
resulting  in  the  injuries  complained  of. 

"  Thiit  the  winter  of  1883-84  was  severer,  and  the  snow  fell 
some  dcepor,  than  the  winter  previous  thereto,  and  that  it  snowed 
heavily  and  continuously  from  about  the  1st  of  March  to  the 
lOlh  of  March,  1884,  and  the  trains  had  ceased  to  run  on  account 
of  the  snow.  That  ordinarily  in  the  winter  season  the  snow  was 
from  five  to  seven  feet  deep  in  said  locality  in  places  where  it  did 
not  drift,  and  after  it  had  settled  compactly.  That  it  drifted 
greatly,  filling  up  basins  and  depressions  on  the  mountain  sides. 
That  there  were  rockslides  and  existing  evidences  of  former 
snowslides  on  this  mountain  side  above  said  section  house. 

*♦  That  the  snowslide  of  February,  1883,  deposited  snow  and 
debris  on  the  upper  track  of  tiie  railroad  above  .said  section  house 
from  twenty  to  twenty-five  feet  deep  ;  and  for  a  consideral)le 
space  of  time  from  then,  during  the  remainder  of  that  winter 
and  the  following  spring,  the  said  railroad  was  not  operated  on 
account  of  the  snow. 

"  And  the  defendant,  to  maintain  the  issues  on  its  part, 
introduced  evidence  tending  to  })rove  that  said  section  house 
was  built  below  the  said  tracks  and  behind,  and  protected  by 
a  thick  growth  of  timber  above  and  between  said  section  house 
and  tiie  mountain  ;  thut  there  were  no  marks  or  tracks  of  former 
snowslides  directly  above  or  in  the  vicinity  of  said  section  house; 
that  the  defendant  was  not  aware  of  any  danger  from  snowslides 
at  the  place  where  the  section  house  was  built,  but,  on  the  con- 
trary, that  the  oflScers  of  the  company  had  carefully  examined 
the  locality  where  the  same  was  built,  and  the  contour  of  the 
mountains  above  the  same  to  the  summit  of  the  range,  and  that 
said  section  house  was  built  at  that  place  because  the  officers  of 
the  company  thought  it  was  —  safe  place,  and  could  not  be 
endangered  by  snowslides,  which  were  apt  to  occur  in  that  part 
of  the  country;  that  the  prominence  or  hip  spoken  of  was  a 
[)rotectiou  against  snowslides  which  might  occur  on  the  mountain 
sides  al)ove  said  section  house;  that  an  examination  of  the 
ground,  timber,  and  rocks  in  the  vicinity  of  where  the  house  was 
built,  and  al)Ove,  on  the  mountain  side,  showed  that  there  had 
not  been  a  snowslide  there  for  at  least  two  hundred  years;  that 
the  snowslide  of  March  10,  1884,  was  caused  by  a  storm  of  un- 
precedented severity  and  duration,  and  that  the  same  came  down 
through  the  timber  above  said  hou^^e,  breaking  down  and  carry- 
ing with  it  standing  trees,  from  bushes  up  to  trees  two  feet  in 
diameter ;  that  the  snowslide  mentioned  as  occurring  in  February, 
1883,  came  down  a  considerable  distance  to  the  north  of  where 
the  one  came  down  in   1884,  and    that    the  snowslide  in  1883 


118  ESTATES    LESS    THAN    FREEHOLD. 

did  no  damage  except  to  cover  up  a  short  distance  of  the 
railroad  track,  and  break  in  some  boards  of  the  house  under 
the  water  tank;  that  the  attention  of  the  superintendent 
of  construction  of  said  railroad  was  not  called  by  any  one  to  the 
fact  of  there  beingany  danger  from  snowslides  at  the  place  where 
said  section  house  was  built,  but  that  the  conversation  or  notice 
referred  to  was  in  regard  to  a  place  a  mile  or  more  further  up 
Quartz  creek  ;  that  the  said  Andrew  Doyle  had  been  an  cfuployee 
of  the  defendant  as  a  section  hand,  but  had  quit  work  some  days 
before  on  account  of  the  road  being  blockaded  by  snow,  and  all 
attempts  to  open  it  having  been  abandoned,  and  for  ten  days  or 
more  l)efore  the  snowslide  no  worlc  whatever  was  being  done  by 
defendant  on  said  road  for  a  distance  of  several  miles  each  way 
from  said  Woodstock;  that  said  prominence  or  hip  on  the 
mountain  side  mentioned  by  the  witnesses  tended  to  protect  said 
section  house  and  its  immediate  locality  from  snowslides;  that 
there  was  no  chasm  or  draw  immediately  above  said  section  house, 
and  that  whatever  formation  of  that  kind  there  was  on  said  moun- 
tain was  a  distance  of  two  hundred  feet  or  more  north  of  said 
section  house;  that  said  section  house  was  broken  down  by  said 
snowslide  of  March  10,  1884,  by  a  spreading  out  of  the  snow  as  it 
came  down  the  mountain,  and  that  said  section  house  was  on  the 
southerly  side  of  said  snowslide  ;  that  the  gorge  referred  to  is  sim- 
ply an  opening  a  few  feet  wide  in  the  ridge  of  rock  referred  to  as 
the  hip  or  *  prominence ;  '  that  a  short  distance  above  said  promi- 
nence the  general  timber  line  of  the  country  is  reached,  above 
which  no  timber  occurs;  that  there  was  a  considerable  amount  of 
timber  between  said  section  house  and  the  first  railroad  track, 
and  a  thick  growth  of  large  timber  immediately  above  the  first 
railroad  track,  extending  up  some  distance  towards  the  second 
track  of  the  loop,  and  some  scattering  tin)ber  above  the  upper 
track  ;  that  there  are  no  rockslides  or  existing  evidences  of  former 
snowslides  on  the  mountain  sides  immediately  above  said  section 
house. 

*'  And  the  foregoing  was  all  the  evidence  in  the  case." 

To  the  answers  of  the  court  to  the  prayers  for  instructions 
and  to  the  charge,  the  plaintiff  has  filed  13  assignments  of 
error. 

The  twelfth  assi2:nment  alleges  that  '*  the  circuit  court  erred 
in  charging  the  jury  substantially  to  the  effect  that  they  must 
find  for  the  defendant,"  and  in  the  brief  of  the  plaintiff  in  error 
it  is  asserted  that  the  answers  of  the  court  to  the  several  requests 
for  instructions  were  in  effect  directions  to  the  jury  to  find  for 
the  defendant. 

Although,  in  point  of  fact,  the  court  did  not  give  the  jury 


IMPLIED    WAUKANTY    AS    TO    CONDITION    OF    PREMISES.  119 

per(Miii)t()ry  instructions  to  find  for  the  defendant,  but  left  the 
eases  to  them  on  instructions  under  which  they  might  hiive  found 
verdicts  for  the  plaintiff,  yet  the  validity  of  the  plaintiff's  excej)- 
tions  to  the  court's  treatment  of  the  cases  may  be  conveniently 
tested  by  assumiuij:,  for  the  i)resent,  that  the  cljargc  and  insi  ruc- 
tions legally  amounted  to  a  direction  to  find  for  the  defendant. 
If  an  examination  of  the  facts  and  of  the  principles  of  law  in- 
volved warrants  us  in  concluding  that  the  court  would  hive  been 
justitied  in  so  doing,  it  will  not  be  necessary  to  consider  earh 
and  every  assignment  of  error,  nor  to  minutely'  scan  isolaleil 
expressions  used  by  the  court. 

The  first  question  to  be  determined  is,  what  was  the  rehition 
between  the  plaintiff  and  the  railway  company?  Was  Mrs. 
Doyle  a  servant  or  employee  of  the  company,  aiding  in  the  trans- 
action of  its  business  and  subject  to  its  directions,  or  was  she  a 
tenant  at  will  holding  the  premises  by  an  occupation  durin*'"  the 
will  of  the  company?  The  facts  averred  by  the  plaintiff  show 
that  the  company  was  not  interested,  in  a  legal  sense,  in  the 
management  of  the  boarding  house  ;  did  not  receive  the  board 
money,  pay  the  expenses,  take  the  profits,  or  suffer  the  losses. 
The  company  could  not  call  upon  her  for  any  account,  nor  could 
she  demand  payment  from  the  company  for  any  services  ren- 
dered by  her  in  carrying  on  the  boarding  house.  The  fact  that 
the  company  agreed  to  aid  her  in  collecting  what  might  be  due 
to  her  from  time  to  time  by  the  boarders,  by  withholding  moneys 
out  of  the  wages  payable  to  them  by  the  railroad  company,  did 
not  convert  Mrs.  Doyle  into  a  servant  of  the  company,  or  change 
her  relation  to  the  company  as  a  tenant  at  will  of  the  company's 
house.  Such  an  arrangement  might  equally  have  been  made  if 
Mrs.  Doyle  had  l)een  the  owner  of  the  house.  The  court  below 
was  not  in  error  in  holding  that  the  relation  of  the  parties  was 
that  of  landlord  and  tenant. 

If,  then,  such  was  the  relation  of  the  parties,  upon  what 
principle  can  a  liability  for  the  damages  occasioned  by  the  snow- 
slide  be  put  upon  the  company?  There  was  neither  allegation 
nor  proof  of  fraud,  misrepresentation,  or  deceit  on  the  part  of 
the  defendant  company  as  to  the  condition  of  the  ))reini.-e~. 
Indeed,  it  was  not  even  pretended  that  the  catastrophe  was  in 
any  way  occasioned  by  the  condition  of  the  house. 

It  was,  indeed,  alleged  that  the  section  house  was  built  near 
the  base  of  a  high  and  steep  mountain,  and  in  a  place  subject  to 
snowslides,  and  dangerous  on  that  account ;  that  the  company 
was  aware  of  said  danger;  that  the  plaintiff  and  her  children  had 
never  before  resided  in  a  region  of  country  subject  to  snowslides, 
and  had  no  knowledge  of  snowslides  or  of  their  indications,  or 


120  ESTATES    LESS    THAN    FREEHOLD. 

of  the  claiif^ers  iuciclent  thereto;  and  that  the  company  did  not 
at  any  time  notify  or  apprise  the  plaintiff  or  her  children  of 
the  daiifrerof  siiowslidcs  or  of  the  lia!)ility  of  siiowslides  at  such 
place  Avhere  said  section  then  wa.s,  or  in  that  locality  ;  and  upon 
this  alleged  state  of  facts  it  was  contended  that  the  jury  had  a 
light  to  find  that  the  railway  company  was  guilty  of  carelessness 
or  disregard  of  duty  towards  the  plaintiff  such  as  to  make  it 
liable   in  these  actions. 

It  is,  however,  well  settled  that  the  law  does  not  imply  any 
warranty  on  the  part  of  the  landlord  that  the  house  is  reason- 
ably fit  for  occupation;  much  less  does  it  imply  a  warranty  that 
no  accident  should  befall  the  tenant  from  external  forces,  such 
as  storms,  tornadoes,  earthquakes,  or  snowslides.  The  law  is 
thus  stated  in  a  well-known  work  on  Landlord  and  Tenant :  — 

"  There  is  no  implied  warranty,  on  the  letting  of  a  house, 
that  it  is  safe,  well  built,  or  reasonably  fit  for  habitation  ;  or  of 
land,  that  it  is  suitable  for  cultivation,  or  for  any  other  purpose 
for  which  it  was  let;  ami  where  a  person  hired  a  house  and  gar- 
den for  a  term  of  years,  to  be  used  for  a  dwelling  house,  but 
subsequently  abandoned  it  as  unfit  for  hal)itation,  in  consequence 
of  its  being  infested  with  vermin  and  other  nuisances,  which  he 
was  not  aware  of  when  ho  took  the  lease,  the  principle  was  laid 
down  after  an  elal)orate  review  of  all  the  cases  where  a  contrary 
doctrine  seemed  to  have  prevailed,  that  there  is  no  implied  con- 
tract on  a  demise  of  real  estate  that  it  shall  be  fit  for  the  pur- 
poses for  which  it  was  let.  Consequently  an  abandonment  of 
the  premises  under  these  circumstances  forms  no  defense  to  an 
action  for  rent;  and  in  all  cases  where  a  tenant  has  been  allowed, 
upon  suggestions  of  this  kind,  to  withdraw  from  the  tenancy, 
and  refuse  the  payment  of  rent  there  will  be  found  to  have  been 
a  fraudulent  misre[)resentation  or  concealment  as  to  the  state 
of  the  premises  which  were  the  subject  of  the  letting,  or  else 
the  premises  proved  to  bo  uninhabitable  by  some  wrongful  act 
or  default  of  the  landlord  himself.  The  lessor  is  not,  however, 
always  bound  to  disclose  the  state  of  the  premises  to  the  intended 
lessee,  unless  he  knows  that  the  house  is  really  unfit  for  habit- 
ation, and  that  the  lessee  does  not  know  it,  and  is  influenced  hy 
his  belief  of  the  soundness  of  the  house  in  agreeing  to  take  it; 
for  the  conduct  of  the  lessor  may,  in  this  respect,  amount  to  a 
deceit  practiced  upon  the  lessee."     Tayl.  Landl.  &  Ten.,  §  382. 

The  principles  applied  to  the  present  case  have  been  well 
stated  in  the  recent  case  of  Bowe  v.  Hunking,  135  Mass.  380. 
The  syllabus  states  the  case  and  decision  as  follows  :  — 

"  A  tenant  cannot  maintain  an  action  against  his  landlord  for 
an  injury  caused  by  falling  upon  a  stair  in  the  tenement, the  tread 


IMPLIED    WARRANTY    AS    TO    CONDITION    OF     PREMISES.       121 

of  which  has  been  sawed  out  and  left  unsupported  by  a  previous 
tenant,  there  having  been  full  oppoitunity  to  examine  the  stair 
at  the  time  of  hiring,  and  no  warranty  of  the  fitness  of  the  tene- 
ment having  been  given  by  the  landlord  ;  the  only  evidence  of 
knowledjje  on  tlie  part  of  the  Lindlord  beincr  that  he  knew  the 
stair  had  been  sawed  out,  that  he  tried  it,  and  it  bore  his  weight, 
and  he  thought  it  would  bear  anybody's  weight." 

The  judge  directed  a  verdict  for  defendants,  and  the  Supreme 
Court  sustained  this  ruling.  Field,  J.,  giving  the  opinion  of  the 
court,  said  (page  383):  — 

"  There  is  no  implied  warranty  in  letting  of  an  unfurnished 
house  or  tenement  that  it  is  reasonably  fit  for  use  [citing cases]. 
The  tenant  takes  an  estate  in  the  premises  hired  and  persons  who 
occupy  by  his  permission  or  as  members  of  his  family,  cannot 
be  considered  as  occupying  by  the  invitation  of  the  landlord,  so 
as  to  create  a  greater  liability  on  thepart  of  the  landlord  to  them 
than  to  the  tenant.  The  tenant  is  in  possession,  and  he  deter- 
mines who  shall  occupy  or  enter  his  premises  [citing  cases]. 

"  In  the  case  at  bar  there  was  no  express  or  implied  warranty, 
and  no  actual  fraud  or  misre])resentation.  If  the  action  can  be 
maintained  it  must  be  on  the  ground  that  it  was  the  duty  of  the 
defendants  to  inform  the  tenant  of  the  defect  in  the  staircase. 
This  duty,  if  it  exists,  does  not  arise  from  the  contract  between 
the  parties,  but  from  the  relation  between  them,  and  is  imposed 
by  law.  If  such  a  duty  is  imposed  by  law,  it  would  seem  that 
there  is  no  distinction  as  a  ground  of  liability  between  an  inten- 
tional and  an  unintentional  neglect  to  perform  it;  but  in  such  a 
case  as  this  is  there  can  be  no  such  duty  without  knowledge  of 
the  defect.  There  is  no  evidence  of  any  such  knowledge,  except 
on  the  part  of  C.  D.  Hunking,  and  the  other  defendants  cannot 
in  any  event  be  held  liable,  unless  his  knowledge  can  be  imputed 
to  them,  as  the  knowledge  of  their  agent  in  letting  the  premises. 
The  evidfiice  is  insufficient  to  warrant  the  jury  in  finding  that  C 
D.  Hunking  intentionally  concealed  the  defect  from  the  tenant; 
and  the  action,  if  it  can  be  maintained,  must  proceed  upon  the 
ground  of  neglect  to  perform  a  duty  which  the  law  imposed  upon 
the  defendants. 

"  A  tenant  is  a  purchaser  of  an  estate  in  the  land  or  building 
hired;  and  Keates  v.  Earl  of  Cadogan,  10  C.  B.  591,  states  the 
general  rule  that  no  action  lies  by  a  tenant  against  a  landlord  on 
account  of  the  condition  of  the  premises  hired,  in  the  absence  of 
an  express  warranty  or  of  active  deceit.  See,  also,  Bobbins  v. 
Jones,  15  C.  B.  (N.  S.)  240.  This  is  a  general  rule  of  caveat 
emptor.  In  the  absence  of  any  warranty,  express  or  implied, 
the  buyer  takes  the  risk  of    quality  upon  himself.     Hight  v. 


122  ESTATES  LESS    THAN    FUEfcHOLD. 

Bacon,  126  Mass.  10;  Ward  v.  Hobbs,  3  Q.  B.  Div.  150; 
Howard  v.  Emerson,  110  Mass.  320.  This  rule  does  not  apply 
to  cases  of  fraud." 

This  rule  of  caveat  emptor  has  been  applied  also  in  many 
other  cases,  some  of  which  we  now  refer  to. 

Keates  v.  Earl  of  Cadogan,  above  cited,  was  an  action  on  the 
case.  The  declaration  states  in  substance  that  the  defendant 
knew  that  the  house  was  in  such  a  ruinous  and  dangerous  state 
as  to  be  dangerous  to  enter,  occupy,  or  dwell  in,  and  was  likely 
to  fall  and  thereby  do  damage  to  persons  and  property  therein  ; 
that  the  plaintiff  was  without  any  knowledge,  notice,  or  informa- 
tion whatever  that  the  said  house  was  in  said  state  or  condition ; 
that  the  defendant  let  the  house  to  plaintiff  without  givmg  plain- 
tiff any  notice  of  the  condition  of  the  house;  and  that  plaintiff 
entered,  and  his  wife  and  goods  and  business  were  injured. 
Defendant  demurred  to  the  declaration,  and  the  court  unani- 
mously sustained  the  demurrer.  Jervis,C.  J.,  giving  the  opinion, 
said  (  page  609)  :  — 

*'  It  is  not  contended  that  there  was  any  warranty  that  the 
house  was  fit  for  immediate  occupation  ;  but  it  is  said  that, 
because  the  defendant  knows  it  is  in  a  ruinous  state,  and  does 
nothing  to  inform  the  plaintiff  of  that  fact,  therefore  the  action 
is  maintainable.  It  is  consistent  with  the  state  of  things  dis- 
closed in  the  declaration  that,  the  defendant  knowing  the  state 
of  things,  the  plaintiff  may  have  come  to  him  and  said,  *  Will 
you  lease  that  house  to  me?  '  and  the  defendant  may  have 
answered,  '  Yes,  I  will.'  It  is  not  contended  by  the  plaintiff  that 
any  misrepresentation  was  made,  nor  is  it  alleged  that  the  plain- 
tiff was  acting  on  the  impression  produced  by  the  conduct  of  the 
defendant  as  to  the  state  of  the  house,  or  that  he  was  not  to 
make  investigations  before  he  began  to  reside  in  it.  I  think, 
therefore,  that  the  defendant  is  entitled  to  our  judgment,  there 
being  no  obligation  on  the  defendant  to  say  anything  about  the 
state  of  the  house,  and  no  allegation  of  deceit.  It  is  an  ordinary 
case  of  letting." 

The  rule  of  caveat  emptor  was  also  applied  in  the  recent  case 
of  Woods  V.  Cotton  Co.,  134  Mass.  357.  Defendant  was  owner 
of  a  tenement  house  fitted  for  four  families,  and  plaintiff  was 
tenant  at  will,  or  wife  of  tenant  at  will.  There  were  three  stone 
steps  leading  down  from  the  yard  to  the  street,  on  which  ice 
and  snow' had  accumulated,  and  on  which  plaintiff  slipped  and 
received  the  injury  complained  of.  There  was  evidence  tending 
to  prove  that  at  the  time  plaintiff  was  injured  she  was  in  the 
exercise  of  due  care.  The  jury  viewed  the  premises.  Plaintiff 
contended  that  the  steps  were  of  such  material,  and  constructed 


IMPLIED    WARRANTY   AS    TO    CONDITION   OF   PREMISES.  123 

in  such  manner,  that  they  occasioned  the  accumulation  of  snow 
and  ice  thereon  improperly,  and  that  tlie  defendant's  omission  to 
place  a  rail  on  either  side,  or  to  take  other  reasonable  measures 
to  prevent  one  from  falling,  was  such  negligence  as  would  render 
the  defendant  liable;  but  the  trial  court  held  there  was  no  evi- 
dence logo  to  the  jury,  and  directed  a  verdict  for  defendant,  and 
the  Supreme  Court  sustained  this  ruling.  Field,  J.,  giving  the 
opinion,  says  (page  359) :  — 

"There  may  be  cases  in  which  the  landlord  is  liable  to  the 
tenant  for  injuries  received  from  secret  defects  which  are  known 
to  the  landlord  and  concealed  from  the  tenant,  but  this  case 
discloses  no  such  defects  in  the  steps.  *  *  *  [Page  361.] 
The  ice  and  snow  were  the  proximate  cause  of  the  injury. 

"  The  exceptions  state  that  no  railing  had  ever  been  placed  on 
either  side  of  the  steps,  that  the  jury  viewed  the  premises  and 
that  it  was  contended  '  that  the  steps  were  of  such  material, 
and  constructed  in  such  manner,  that  they  occasioned  the 
accumulation  of  ice  and  snow  thereon  improperly.'  The 
steps  were  of  rough-split,  unhewn  granite,  and  the  structure 
of  the  steps  remained  unchanged  from  the  time  of  the 
phiintitf' s  first  occupancy  of  the  tenement  to  the  time  she 
received  her  injury.'  The  defendant  was  under  no  obligation  to 
change  the  original  construction  of  the  steps  for  the  benefit  of  the 
tenant." 

Hazlett  V.  Powell,  30  Pa.  St.  293,  was  an  action  of  replevin,  in 
which  an  apportionment  of  rent  was  claimed  by  the  tenant  of  an 
hotel,  on  the  ground  that  he  had  been  partially  evicted  by  the  act 
of  an  adjoining  owner  in  building  so  that  the  tenant's  light  and 
air  from  one  side  of  his  hotel  was  shut  off  or  obstructed,  and,  as 
a  result,  that  the  hotel  was  rendered  pro  tanto  unfit  for  the  pur- 
pose for  which  it  was  intended  to  be  used.  There  was  an  offer  to 
prove  certain  facts  (page  294),  which  the  court  states  as  follows 
(page  297):  — 

'*  But  the  rejected  proposition  also  contained  an  offer  to  prove 
that  the  lessor  knew  at  the  time  of  executing  the  lease  that  the 
adjoining  owner  intended  building  on  his  lot  —  at  what  time  is  not 
offered  to  be  shown  —  and  did  not  communicate  this  information 
to  the  lessees.  We  thinkhe  was  not  bound  to  do  so,  and  that,  if  the 
evidence  had  been  received,  it  would  have  furnished  no  evidence 
of  fraud  on  the  part  of  the  lessor,  or  become  the  foundation  in 
equity  for  relief  of  the  lessees.  The  substance  of  the  comj^laint 
regarded  something  that  the  lessor  was  no  more  presumed  to 
know  than  the  lessees.  It  was  nothing  which  concerned  the 
title  of  the  lessor,  or  the  title  he  was  about  to  pass  to  the  les- 
sees.    It  was    a   collateral    fact,  —  something  only  within  the 


124  ESTATES    LESS   THAN    FREEHOLD. 

knowledge  siiid  dotermi nation  of  a  stranger  to  both  parties;  and, 
if  raateiial  to  either,  I  can  see  no  obligation  resting  on  either 
side  to  furnish  to  the  other  the  information.  It  was  not  alleged 
that  the  lessor  made  any  representations  on  the  subject,  or  that 
there  was  any  concealment  of  the  information  ;  or  that  any  rela- 
tion of  trust  and  confidence  existed  between  the  parties;  or  that 
the  lessees  were  misled  by  his  silence,  and  entered  into  the 
contract  under  the  belief  that  the  vacant  lot  would  not  be  occu- 
pied ;  or  that  they  were  in  a  position  in  which  they  could  not  by 
diligence  have  ascertained  the  fact  for  themselves,  and  that  they 
were  not  legally  bound  to  take  notice  of  the  probability  that  the 
ground  would  be  occupied  by  buildings,  and  inquire  for  them- 
selves. These  were  elements  to  bo  shown  to  constitute  fraud, 
and  make  the  testimony  availal)le. 

"  '  The  general  rule,  both  in  law  and  equity,'  says  Story  on 
Contracts  (section  516),  'in  respect  to  concealment,  is  that 
mere  silence  in  regard  to  a  material  fact  where  there  is  no  legal 
obligation  to  disclose  will  not  avoid  a  contract,  although  it  oper- 
ates as  an  injury  to  the  party  from  whom  it  is  concealed.'  But 
the  relation  generally,  which  raises  the  legal  obligation  to  dis- 
close facts  known  by  one  party  to  the  other,  is  where  there  is 
some  especial  trust  and  confidence  reposed,  such  as  where  the 
contracting  j)arty  is  at  a  distance  from  the  object  of  negotiation, 
when  he  necessarily  relies  on  full  disclosure;  or,  where,  being 
present,  the  bu3^er  put  the  seller  on  good  faith  by  agreeing  to 
deal  only  on  his  misrepresentation.  In  all  these  kindred  cases 
there  must  be  no  false  representations  nor  proposed  conceal- 
ments; all  must  be  truly  stated  and  fully  disclosed.  'The 
vendor  and  vendee,'  says  Atkinson  on  Marketable  Titles,  134, 
*  in  the  absen(;e  of  special  circumstances,  are  to  be  considered  as 
acting  at  arm's-length.  When  the  means  of  information  as  to 
the  facts  and  circumstances  atl'ecting  the  value  of  the  subject  of 
sale  are  equally  accessible  to  both  parties,  and  neither  of  them 
does  anything  to  impose  on  the  other,  the  disclosure  of  any 
superior  knowledge  which  one  party  may  have  over  the  other 
is  not  requisite  to  the  validity  of  the  contract.'  Id.  Illustrative 
of  this  is  the  celebrated  case  of  Laidlaw  v.  Organ,  2  Wheat.  178. 
The  parties  had  been  negotiating  for  the  purchase  of  a  quantity 
of  tobacco.  The  buyer  got  private  information  of  the  conclu- 
sion of  peace  with  Great  Britain,  and  called  very  early  in  the 
morning  following  the  rccei|)t  of  it  on  the  holders  of  the  tobacco, 
and  ascertaining  that  they  had  received  no  intelligence  of  peace, 
purchased  it  at  a  great  profit.  The  contract  was  contested  for 
fraud  and  concealment.  Chief  Justice  Marshall  delivered  the 
opinion  of  the  court,  to  the  effect  that  the  buyer  was  not  bound 


IMPLIED    WARRANTY    AS    TO    CONDITION    OF    PREMISES.       125 

to  communicate  intelligence  of  extrinsic  circumstances  which 
might  intluence  the  price,  though  it  were  exclusively  in  his  pos- 
session. And  Chief  Justice  Gibson,  in  Kinlzing  v.  McEhafh,  5 
Pa.  St.  467,  in  conimenting  on  this  dccifiion,  says:  '  It  would  be 
difficult  to  circumscribe  the  contrary  doctrine  within  pro[)er 
limits,  where  tlie  means  of  intelligence  are  equally  accessible  to 
both  parties.'  See,  also,  Hershey  v.  Keembortz,  (5  Pa.  St.  129. 
When  the  information  is  derived  from  strangers  to  the  parties 
negotiating,  and  not  affecting  the  quality  or  title  of  the  thing 
negotiated  for,  it  is  not  such  as  the  opposite  party  can  call  for. 
We  see  no  error  in  the  rejection  of  the  evidence  on  account  of 
this  part  of  the  proposition,  as  theie  was  no  moral  or  legal  obli- 
gation for  the  lessor  to  disclose  any  information  be  had  on  the 
subject  of  the  intended  improvement  of  the  adjoining  lot.  It 
was  not  in  the  line  of  his  title.  It  was  derived  from  astianger; 
it  might  be  true  or  false ;  and  the  lessees  could  have  got  it  by 
inquiry,  as  well  as  the  lessor. 

*'  It  is  well  settled  that  there  is  no  implied  warranty  that  the 
premises  are  fit  for  the  purposes  for  which  they  are  rented  [cit- 
ing authorities],  nor  that  they  shall  continue  so,  if  there  be  no 
deiault  on  the  part  of  the  landlord." 

In  the  recent  case  of  Viterbo  v.  Friedlander,  120  U.  S.  712  ;  7 
Sup.  Ct.  Rep.  9()2,  Mr.  Justice  Gra}',  who  delivered  the  opinion 
of  the  court,  said,  in  contrasting  the  doctrines  of  the  conmion 
and  civil  law:  "  By  that  law  (the  common  law,  unlike  the  civil 
law)  the  lessor  is  under  no  implied  covenant  to  repair,  or  even 
that  the  premises  shall  be  fixed  for  the  purpose  for  which  they 
are  leased." 

The  plaintiff's  evidence  failed  wholly  to  show  that  there  was 
any  special  and  secret  danger  from  snowslides  which  was  known 
only  to  the  railway  company,  and  which  could  not  have  been 
ascertained  by  the  plaintiff.  It  was,  indeed,  alleged  that  '*  the 
section  house  was  in  a  place  of  danger  from  snowslides  ;  "  but 
this  was  plainly  the  danger  that  impended  over  any  house  placed, 
as  this  one  necessarily  was,  on  a  mountain  side  in  a  country  sub- 
ject to  heavy  falls  of  snow.  The  danger  referred  to  was  that 
incident  to  the  region  and  the  climate,  and,  in  the  eye  of  the  law, 
as  well  known  to  the  plaintiff  as  to  the  defendant. 

On  a  careful  reading  of  the  plaintiff's  evidence  we  are  unable 
to  see  that  the  jury  could  have  been  permitted  to  find  any  posi- 
tive act  of  negligence  on  the  part  of  the  railroad  company,  or 
any  omission  by  it  to  disclose  to  the  plaintiff  any  fact  which  it 
was  the  company's  duty  to  disclose. 

If,  then,  the  plaintiff's  case,  as  it  appeared  in  her  evidence, 
would  not  have  justified  verdict  on  the  ground  of  negligence  or 


126  ESTATES    LESS    TIIAX    FREEHOLD. 

fraudulent  expression  of  facts,  and  as  the  (letcrmination  of  the 
natuio  of  the  rehition  botwoon  the  ))arties,  as  that  of  landlord 
and  tenant,  was  clearly  the  function  of  the  court  there  would,  in 
our  opinion,  have  been  no  error  if  the  court  had  really  given  a 
peretni)tory  instruction  to  the  jury  to  find  for  defendant. 

However,  the  record  discloses  that  the  court  permitted  the 
cases  to  go  to  the  jury.  It  is  true  that  the  remarks  made  by  the 
judge  must  have  indicated  to  the  jury  that  his  own  view  was 
against  the  plaintiff's  right  to  recover  ;  but  it  has  often  been 
held  by  this  court  that  it  is  not  a  reversible  error  in  the  judge  to 
express  his  own  opinion  of  the  facts,  if  the  rules  of  law  are  cor- 
rectly laid  down,  and  if  the  jury  are  given  to  undeistand  that 
they  are  not  bound  by  such  opinion.  Baltimore  &  P.  R.  Co.  v. 
Baptist  Church,  137  U.  S.  5()8  ;  11  Sup.  Ct.  Rep.  185  ;  Simmons 
V.  U.  S.,  142  U.  S.  148  ;  12  Sup.  Ct.  Rep.  171. 

It  is  not  necessary  for  ns  to  review  in  detail  the  criticisms 
made  in  the  several  instructions,  for,  as  we  have  seen,  even  if 
such  instructions  had  amounted,  in  a  legal  effect,  to  a  direction 
to  find  for  the  defendant,  no  error  would  have  been  committed. 

It  is  obvious  that  these  views  of  the  case  of  Marcella  Doyle, 
clain)in2:  for  her  personal  injuries,  are  equally  applicable  to  her 
suit  under  the  statute,  for  the  loss  of  her  children.  The  latter 
must  be  regarded  as  having  entered  under  their  mother's  title, 
and  not  by  reason  of  an  invitation,  express  or  implied,  from  the 
railway  company;  and  hence  they  assumed  a  like  risk,  and  are 
entitled  to  no  other  legal  measure  of  redress. 

No  error  being  disclosed  by  these  records,  the  judgment  of 
the  court  below  is  in  each  case  affirmed. 


Liessor  of    Furnished  House  Impliedly  Warrants  its  Fitness 

for  Occupation. 

Ingalls  V.  Hobbs,  156  Mass.  348;  31  N.  E.  286. 

Knowlton,  J.  This  is  an  action  to  recover  $500  for  the  use 
and  occupation  of  a  furnished  dwelling  house  at  Swampscott 
during  the  summer  of  1890.  It  was  submitted  to  the  superior 
court  on  what  is  entitled  an  "  agreed  statement  of  evidence,"  by 
which  it  appears  that  the  defendant  hired  the  premises  of  the 
plaintiffs  for  the  season,  as  a  furnished  house,  provided  with 
bods,  mattres-^es,  matting,  curtains,  chairs,  tables,  kitchen 
utensils,  and  other  articles  which  were  ap[)arently  in  good  con- 
dition, and  that  when  the  defendant  took  possession  it  was  found 
to  be  more  or  less  infested  with  bugs,  so  that  the  defendant 
contended  that  it  was  unfit  for  habitation,  and  for  that  reason 


IMPLIED    WARRANTY    IN    TURNISHED    HOUSES.  127 

gave  it  up,  and  declined  to  occupy  it.  The  agreed  statement 
concludes  as  follows :  "  If,  under  the  above  circumstances, 
said  house  was  not  fit  for  occupsition  as  a  furnished  house, 
and,  being  let  as  such,  there  was  an  implied  agreement  or 
warranty  that  the  said  house  and  furniture  therein  should 
be  tit  for  use  and  occui)ation,  judgment  is  to  be  for  the 
defendant,  with  costs.  If,  however,  under  said  circum- 
stances, said  house  was  fit  for  occupation  as  a  furnished 
house,  or  there  was  no  such  i?nplied  agreement  or  warranty, 
judgment  is  to  be  for  the  plaintiffs  in  the  sum  of  $500,  with 
interest  from  the  date  of  the  wiit,  and  costs."  Judgment  was 
ordered  for  the  defendant,  and  the  plaintiffs  appealed  to  his 
court. 

The  agreement  of  record-  shows  that  the  facts  were  to  be 
treated  by  the  superior  court  as  evidence  from  which  inferences 
of  facts  might  be  drawn.  The  only  "  matter  of  law  apparent 
on  the  record"  which  can  be  considered  as  an  appeal  in  a  case 
of  this  kind  is  the  question  whether  the  judgment  is  warranted 
by  the  evidence.  Pub.  St.,  c.  152,  §  10;  Rand  v.  Hanson,  154 
Mass.  —  28  N.  E.  Rep.  6;  Mayhew  v.  Durfee,  138  Mass.  584; 
Railroad  Co.  v.  Wilder,  137  Mass.  536  ;  Hecht  v.  Batcheller, 
147  Mass.  335;  17  N.  E.  Rep.  651;  Fitzsimmons  i;.  Carroll, 
128  Mass.  401  ;  Charlton  v.  Donnell,  100  Mass.  229.  The  facts 
aofreed  warrant  a  finding  that  the  house  was  unfit  for  habitation 
when  it  was  hired,  and  we  are  therefore  brought  directly  to  the 
question  whether  there  was  an  implied  agreement  on  the  part 
of  the  plaintiif  that  it  was  in  a  proper  condition  for  immediate 
use  as  a  dwelling  house.  It  is  well  settled,  both  in  this  com- 
monwealth  and  in  England,  that  one  who  lets  an  unfurnished 
building  to  be  occupied  as  a  dwelling-house  does  not  impliedly 
agree  that  it  is  fit  for  habitation.  Dutton  v.  Gerrish,  9  Cush. 
89;  Fo-ter  ?;.Pevser,/fZ.  242;  Stevens  v.  Pierce,  151  Mass.  207; 
23  N.  E.  Rep.  ]606  ;  Sutton  v.  Temple,  12  Mees.  &  W.  52;  Hart 
V.  Windsor,  Id.  68.  In  the  absence  of  fraud  or  a  covenant,  the 
purchaser  of  real  estate,  or  the  hirer  of  it  for  a  term,  however 
short,  takes  it  as  it  is,  and  determines  for  himself  whether  it  will 
serve  the  purpose  for  which  he  wants  it.  He  may,  and  often 
does,  contemplate  making  extensive  repairs  upon  it  to  adapt  it  to 
his  wants.  But  there  are  good  reasons  why  a  different  rule 
should  apply  to  one  who  hires  a  furnished  room,  or  a  furnished 
house,  for  a  few  days,  or  a  few  weeks  or  months.  Its  fitness  for 
immediate  use  of  a  particular  kind,  as  indicated  by  its  appoint- 
ments, is  a  far  more  important  element  entering  into  the  con- 
tract than  where  there  is  a  mere  lease  of  real  estate.  One  who 
lets  for  a  short  term   a  house  provided  with  all  furnishings  and 


128  ESTATES    IJOSS   THAN    FREEHOLD. 

appointments  for  immediate  rcsidenci;  may  be  supposed  to  con- 
tract in  refer<Mico  to  a  well-uiuleistood  purpose  of  tlie  liirer  to 
use  it  as  a  habitation.  An  im[)ortant  p.irt  of  what  the  hirer 
pays  for  is  tiie  oppoit unity  to  enjoy  it  without  delay,  and  with- 
out the  exi)ense  of  preparin<^  it  for  use.  It  is  very  diflicult,  and 
often  impossible,  for  one  to  determine  on  inspection  whether 
the  house  and  its  appointments  are  tit  for  the  use  for  which  they 
are  immediately  wauled,  and  the  doctrine  caveat  emplor,  which 
is  ordinarily  applical)le  to  a  lessee  of  real  estate,  would  often 
work  injustice  if  applied  to  cases  of  this  kind.  It  would  be 
unreasonable  to  hold,  under  such  circumstances,  that  the  land- 
lord does  not  impliedly  agree  that  what  he  is  letting  is  a  house 
suitable  for  occupation  in  its  condition  at  the  time.  This  dis- 
tinction between  furnished  and  unfurnished  houses  in  reference 
to  the  construction  of  contracts  for  letting  them,  when  there 
are  no  express  agreements  about  their  condition,  has  long  been 
recognized  in  England,  where  it  is  held  that  there  is  an  implied 
contract  that  a  furnished  house  let  for  a  short  time  is  in  proper 
condition  for  immediate  occupation  as  a  dwelling.  Smith  v. 
Marrable,  11  Mees.  &  W.  5;  Wilson  v.  H.itton,  2  Exch.  Div. 
336;  Warehouse  Co.  v.  Carr,  5  C.  P.  Div.  507;  Sutton  v.  Sera- 
pie,  uhi  supra;  Hart  v.  Windsor,  nhi  supra  ;  Bird  v.  Lord  Gre- 
ville,  1  Cababe  &  E.  317;  Charsley  v.  Jones,  .^3  S.  P.  Q.  B. 
Div.  280.  In  Dutton  v.  Gerrish,"9  Cush.  89,  Chief  Justice 
Shaw  recoofnizcs  the  doctrine  as  npj)licable  to  furnished  houses  ; 
and  in  Edwards  v.  McLean,  122  N.  Y.  302;  25  N.  E.  Rep.  483; 
Smith  V.  Marrable,  and  Wilson  v.  Hutton,  cited  above,  are 
referred  to  with  approval,  although  held  inapplicable  to  the 
question  then  before  the  court.  See  Cloves  v.  Willoughby,  7 
Hill,  83;  Franklin  v.  Brown,  118  N.  Y.  110,  23  N.  E.  Rep.  126. 
We  are  of  opinion  that  in  a  lease  of  a  completely  furnished 
dwelling  house  for  a  single  season  at  a  summer  watering  place 
there  is  an  implied  agreement  that  the  house  is  fit  for  habitation, 
without  greater  preparation  than  one  hiring  it  for  a  short  time 
might  reasonably  be  expected  to  make  in  appropriating  it  to  the 
use  for  which  it  was  designed. 
Judgment  affirmed. 


Constructive  Eviction. 

Snow  V.  Pulitzer,  142  N.  Y.  263;  36  N.  E.  1059. 

Earl,  J.  In  1848  Mr.  French  erected  a  seven-story  building 
in  the  city  of  New  York;  subsequently,  another  person  erected 
an  adjoining  four-story  building;  and,  still  later,  another  owner 


CONSTRUCTIVE  EVICTION.  129 

erected  another  adjoiiiiiifr  building,  thus  making  three  buildings 
in  the  l)lock.  Tlieie  wore  no  parly  walls,  the  buildings  all  hav- 
ing independent  walls.  Sul)sequcntly,  French  becanie  the  owner 
of  all  the  buildings,  and  converted  them  into  a  hotel,  called 
"French's  Hotel;"  the  buildings  being  used  together  as  one 
building,  with  doors  and  oi)enings  through  them.  The  hotel 
l)ioperty  passed  by  will  from  French  to  his  daughter  Helen  A. 
French;  and  in  January,  188(5,  she  leased  the  first  iloor  of  the 
four-stor}'  building  to  the  plaintiff  for  a  term  ending  on  the  1st 
day  of  May,  1889.  While  the  plaintiff  was  in  the  ()ccui)ancy  of 
his  store,  on  the  10th  day  of  April,  1888,  she  conveyed  the  en- 
tile block,  designating  it  as  "French's  Hotel,"  and  describing 
it  as  an  entirety,  subject  to  the  lease,  to  the  defendant.  In  June 
thereafter  he  commenced  to  tear  down  the  seven-story  building, 
and  after  the  four  upi)er  s'oi-ies  thereof  had  been  removed,  down 
to  the  thinl  story  of  the  four-story  building,  it  was  found  that 
the  wall  of  the  Ibur-story  building  was  supported  ])y  the  adjoin- 
ing wall  of  the  seven-story  building,  and  that  it  could  not  stand 
without  such  su[)port,  and  it  b(>gau  to  crack  and  break,  and  that 
there  was  imminent  chmger  of  its  falling.  Upon  making  this 
discovery,  the  persons  engag(>d  in  taking  down  the  seven-story 
building  under  the  defendant  discontinued  their  work;  and 
thereafter  proceedings  were  taken  by  the  fire  department  of  the 
city  of  New  York,  by  which  the  four-story  building  was  con- 
demned, as  unsafe,  and  there  was  a  judgment  directing  the  su- 
perintendent of  buildings  to  remove  the  same,  and  in  ol)edience 
to  that  judgment  the  defenchmt  tore  down  the  four-story  build- 
ing, and  the  plaintiff  was  thus  deprived  of  the  benefit  of  his 
lease,  was  ousted  from  the  possession  of  the  store,  and  his  busi- 
ness broken  up;  and  he  brought  this  action  to  recover  his  dam- 
ages. The  contention  of  the  defendant  is  that  the  plaintiff  was 
not  entitled  to  have  the  wall  of  tiie  building  in  which  his  store 
was  situated  su))ported  by  the  adjoinmg  wall  of  the  seven-story 
building  ;  that  there  was  no  easement  in  that  wall  for  the  sup- 
port of  the  wall  of  the  four-story  building  ;  and  hence,  that  no 
legal  wrong  was  done  to  the  plaintiff  by  the  tearing  down  of 
that  wall. 

The  trial  judge  held  that  if,  at  the  time  of  the  lease  to  the 
plaintift',  the  wall  of  the  building  in  which  his  store  was  located 
was  dependent  for  support  upon  the  adjoining  wall,  he  was  en- 
titled to  such  support,  and  the  defendant  could  not  lawfully 
remove  that  wall,  and  thus  render  the  four-story  building  unten- 
antable. In  this  ruling  wo  think  the  trial  judge  was  clearly 
right.  We  are  not  dealing  with  a  case  where,  at  the  time  of 
the  demise,  the  two  buildings  were  separately  owned,  but  with 

9 


130  ESTATKS    l.KSS    THAN    riiKKHOLD. 

ji  case  where  Ihey  were  owned  by  the  same  person,  and  wliere 
all  the  Imildings  weie  held  and  owned  as  one  entire  property. 
When  the  plaintiff  leased  his  store,  he  bccaino  cnlitled,  as 
against  the  lessor,  to  the  store  as  it  then  was,  and,  as  against 
him,  to  have  the  walls  sufTieieiitly  supported  as  they  then  were  ; 
and  if  the  wall  of  the  four-story  building  could  not  stand, 
of  itself,  then  ho  was  entitled  to  the  support  of  the  wall 
of  the  seven-stor}'^  building,  and  the  two  walls  constituted  the 
wall  of  his  building  ;  and  the  defendant  had  no  right  to  remove 
any  portion  of  the  wall  of  the  four-stoiy  building,  or  any  of  its 
supports,  so  as  to  drive  the  })lainliif  from  his  store.  A  landlord, 
in  such  a  case,  would  have  no  more  right  to  tear  down  the  sup- 
porting wall  than  ho  would  to  tear  down  the  demi.-ed  building 
itself.  The  contention  of  the  landlord,  here,  is  against  both 
reason  and  justice,  and  has  no  support  in  any  precedent  or  any 
princi[)le  of  law.  The  rights  of  the  plaintiff  do  not  depend  upon 
the  technical  doctrine  of  eviction.  The  defendant  was  a  tres- 
passer and  a  wrong-doer,  and  is  just  as  responsible  for  the  con- 
sequences of  his  acts  as  he  would  have  been  if  he  had  removed 
the  roof  from  the  building,  or  entered  the  plaintiff's  stoie  and 
physically  expelled  him.  The  responsibility  of  the  defendant  in 
no  way  depends  upon  his  knowledge  that  the  wall  of  the  seven- 
story  building  was  necessary  to  the  su[;port  of  the  wall  of  the 
four-story  building.  He  was  bound  to  know  what  he  was  about, 
and  cannot  shield  himself  against  a  trespass  because  he  did  not 
foresee  the  consequences  of  his  acts,  or  even  because  he  did  not 
not  know  that  he  was  trespassing.  If  he  supposed  that  he  was 
entitled  to  take  down  the  wall  of  the  seven-story  building, 
to  the  support  of  which  plaintiff  was  entitled  for  his  store, 
he  was  mistaken,  and  is  responsil)Ie  for  the  consequences 
of  his  mistake.  When  he  learned  that  the  wall  of  the 
four- story  building  could  not  stand  without  the  support  of 
the  wall  of  the  seven  story  building,  ho  was  bound  to  take  the 
consequences  of  his  acts,  or  to  rebuild  that  wall,  and  thus 
support  the  wall  of  the  four-story  building.  The  defendant 
is  not  protected  fiom  responsil)ility,  in  this  case,  because, 
after  he  had  removed  the  wall  of  the  seven-story  building 
down  to  the  third  story  of  the  four-story  building,  thus  ren- 
dering the  latter  dangerous  and  insecure,  the  fire  department 
caused  it  to  be  removed.  It  was  liis  act  that  brought  on  the 
proceeding  by  the  fire  depnrtment.  He  created  the  danger 
which  invoked  its  action.  It  was  due  to  his  act,  solely,  that 
the  building  was  finally  taken  down,  and  the  plaintiff  ousted, 
and  deprived  of  his  lease.  While  no  authority  is  needed  for 
a  conclusion  depending  on  such  obvious  principles  of  right  and 


CONSTRUCTIVE    EVICTION.  131 

justice,  the  case  of  Kichiirds  r.  Ross,  9  Exch.  218,  may  be  cited 
as  having  some  bearing.  There  it  was  licld  that  whore  several 
houses  belonging  to  the  same  owner  are  built  together,  so  that 
each  requires  the  mutual  sui)i)ort  of  the  neighljoring  house, 
and  the  owner  parts  with  one  of  the  houses,  tlie  right  to  such 
mutual  support  is  not  tliereby  lost,  the  legal  presum[)tion  l)eing 
that  the  owner  reserves  to  himself  such  lityjit,  and  at  the  same 
time  grants  to  the  new  owner  an  equal  right;  and,  consecjueutiy 
if  the  owner  parts  with  several  of  the  houses  at  different  times, 
the  possessors  still  enjoy  the  right  to  mutual  support,  the  right 
being  wholly  independent  of  the  question  of  the  priority  of  their 
titles. 

The  learned  counsel  for  the  defendant  complains  that  an 
improper  rule  or  measure  of  damages  was  adopted  by  the  trial 
judge.  It  w^as  provided  in  the  lease  of  the  store  to  the  plaintiff 
that  the  store  should  be  used  exclusively  for  the  sale  of  con- 
fectionery ;  and  at  the  time  the  plaintitr  was  evicted,  and  his 
business  l)roken  up,  he  was  doing  a  large  and  profitable  business 
in  his  line,  and  had  on  hand  !i  largi;  quantity  of  confectionery, 
which  ho  was  required  to  remove.  The  trial  judge  held  that,  if 
the  plaintiff  w.is  entitled  to  recover  at  all,  he  was  entitled  to 
recover  the  damages  which  were  the  natural  consequences  of  the 
destruction  of  the  building  occupied  by  him,  and  his  eviction 
therefrom.  He  had  made  some  expenditures  in  fitting  up  the 
store  for  his  business,  and  the  judge  charged  the  jury  that  they 
could  take  those  expenditures  into  consideration.  There  was 
also  damage  to,  and  depreciation  of  the  stock  of  confectionery 
he  had  on  hand  ;  and  the  judge  charged  the  jury  that  they 
could  take  that  into  consid(u-ation.  lie  also  charged  the  jury 
that,  in  estimating  the  plaintiff's  damages,  they  could  con- 
sider the  profits  he  could  have  made  in  his  business  if  he 
had  been  permitted  to  carry  it  on  to  the  end  of  his  lease. 
The  charge  of  the  judge  as  to  these  various  items  of 
damages  seems  to  have  been  carefully  limited  and  explained, 
and  the  only  exception  to  which  our  attention  is  called,  bearing 
on  the  damages,  is  the  final  exception  in  the  case  to  the 
charge  "in  respect  to  the  measure  of  damages."  The  judge 
was  not  requested  to  limit  or  explain  his  charge  as  to  the  meas- 
ure of  d  images,  or  in  any  way  to  modify  the  rules  laid  down  by 
him,  and  his  attention  was  not  called  to  any  particular  part  of 
his  charge  on  the  question  of  damages,  of  which  complaint  was 
made,  and  hence  the  general  exce^Jtion  is  not  available  here. 
But  the  principal  item  of  recovery  was  on  account  of  the  pros- 
spective  profits  in  the  plaintitT's  business  during  the  remainder 
of  the  terra  of  his  lease;   and  that  they  were  proper  to  be  con- 


132  ESTATES  "  LKSS    THAN    FREEHOLD. 

sidcred  in  ostiniuliiiji  lij.s  diuniim's  in  n  case  liU((  this,  where  he 
was  evicted,  and  hi.s  husincss  l)t()ken  up,  hy  the  trespass  and 
wrong  of  the  defeiid.'int,  was  decided  in  Sciiile  v.  Bi'okhahus,  80 
N.  Y.  G14.  The  judgment  should  therefore  he  affirmed,  with 
costs.  Ail  concur,  except  Gray,  ,J.,  not  voting.  Judgment 
affirmed. 

Surrender  of  the  Premises  —  Covenant  to  Return  Property  in 

Good     Condition. 

Stevens  v.  Pautliud,  95  Mich.  145;  54  N.  W.  7KJ;  s.  c.  87  Mich.  47(1;  49  N.  W.G02. 

Grant,  J,  The  terms  of  tlie  lease  involving  the  qucitions 
now  raised,  are  stated  in  87  Mich.  47G;  49  N.  W.  Rep.  602. 
The  evidence  there  given  is  also  substantially  the  same  as  in  the 
present  record,  which,  in  addition,  contains  evidence,  given  on 
the  part  of  plaintiff,  tending  to  show  that  at  the  time  of  the 
alleged  surrender  of  the  pioperty  to  i)Iaintiff  there  were  logs  in 
the  mill  yard,  luml)er  and  slabs  in  the  mill,  and  liiml)er  upon  the 
docks  and  in  the  yard.  The  evidence  will  be  rcCeried  to  in  con- 
nection with  the  legal  questions  to  be  determined. 

1.  The  court  left  it  to  the  jury  to  determine  whether  the  lease 
was  in  fact  terminated.  This  lulinn;  and  the  instructions  given 
were  correct  if,  under  the  plaintiff's  own  showing,  the  lease  had 
not  expired.  No  time  was  fixed  in  the  lease  for  its  termination. 
This  depended  upon  a  contingency,  viz.,  the  cutting  of  the  logs 
vi^hich  the  defendants  had  in  plaintiff's  mill  yard,  and  on  lots 
adjoining,  within  the  meaning  and  construction  of  the  lease  as 
determined  from  its  *'  four  corners."  It  did  not  by  its  terms 
expire  the  moment  the  last  log  was  cut  into  lumber,  and  the 
workmen  discharged.  The  defendants  possessed  the  undoubted 
right  to  retain  possession  for  the  removal  of  their  lumber,  and 
for  putting  of  the  mill  in  the  condition  required  by  the  contract 
before  turning  it  over  to  plaintiff,  who  gave  evidence  tending  to 
show  that  defendants'  foreman  and  agent,  Mr.  White,  had, 
after  shutting  the  mill  down,  and  discharging  the  workmen, 
made  a  contract  for  the  removal  of  the  lumber  still 
there.  When  the  mill  was  shut  down,  plaintiff  was  legally  enti- 
tled to  presume  that  defendants  would  perform  their  contract 
before  surrendering,  and  that  they  desired  to  retain  possession 
till  that  was  done.  Not  having  complied  with  the  terms  of  the 
lease,  according  to  plaintiff's  evidence,  some  notice  or  act  equiv- 
alent to  a  notice  was  necessary  on  the  part  of  the  defendants 
saying  to  him  that  they  abandoned  the  premises  and  surrendered 
the  property.  The  bare  statement  that  they  had  ceased  sawing, 
and  had  discharired  their  mill  hands,  and  the  knowledge  of  these 


SURRENDER COVENANT  TO  RETURN  IN  GOOD  CONDITION.  133 

facts  by  the  plaintiff,  are  not  equivalent  to  such  notice.  If  they 
had  left  the  property  in  the  condition  required  by  the  lease,  or, 
in  other  words,  if  they  had  fully  performed  the  contract,  and 
then  abandoned  tlie  i)reniises,  with  the  knowledge  of  the  plain- 
tiff, there  would  be  much  force  in  the  contention  that  ipso  facto 
the  lease  was  at  an  end,  and  no  formal  surrender  necessary. 
But  the  premises  were  not  in  this  condition.  According  to 
plaintiff's  testimony,  this  fact  was  admitted  by  White,  who  had 
the  excbisive  charge  of  defendants'  business  at  the  mill,  and  told 
plaintiff  that  Mr.  Watson,  who  had  negotiated  the  lease  on 
behalf  of  defendants,  would  be  there  in  a  day  or  two,  fix  the 
matter  np,  and  turn  the  property  over.  No  statement  was, made 
to  plaintiff  that  defendants  did  not  intend  to  put  the  property  in 
the  condition  contracted  for,  and,  as  already  stated,  he  had  the 
legal  right  to  presume  that  they  would  do  so.  If  the  jury  be- 
lieved the  testimony  of  White,  the  property  was  surrendered, 
and  the  ])hiintitf  in  possession.  If  they  believed  the  evidence 
for  the  plaintiff,  there  was  no  surrender,  and  the  mill  was  legally 
in  the  possession  and  under  the  control  of  the  defendants.  The 
question  was  fairly  and  properly  submitted  to  the  jury. 

2.  It  is  alleged  as  error  that  the  court  refused  to  instruct  the 
jury  that  "  Mr.  White,  in  his  capacity  as  agent  or  superintend- 
ent of  the  job  of  cutting  these  logs,  had  no  implied  authority 
arising  from  his  position  as  such  agent,  which  would  authorize 
him  to  make  any  arrangement  with  the  plaintiff  looking  towards 
the  continuance  of  the  defendants'  tenancy  after  the  logs  were 
cut,  and  the  mill  shut  down  for  good."  Upon  this  point  the 
court  instructs  the  jury  as  follows  ;  '*  The  cutting  of  the  lumber 
itself  would  determine  the  contract  if  no  words  were  spoken. 
For  instance,  the  defendants  hired  the  mill  for  a  specified  time 
and  purpose;  when  that  time  arrived,  and  the  purpose  was  ful- 
filled by  the  cutting  of  the  timber,  then  their  rights,  of  course, 
by  operation  of  law,  merely,  terminated,  and  they  could  not 
hold  it  longer  without  the  plaintiff's  consenting  to  a  renewal  of 
the  lease.  That  is  clear,  and  if  no  words  were  spoken  other  than 
discharging  the  employees  and  closing  the  mill,  and  leaving  it  in 
the  plaintiff's  hands,  it  went  back  to  the  plaintiff's  hands,  and  he 
could  not  recover  on  the  mere  ground  that  it  was  in  the  hands  of 
the  delendauts.  But  I  think  this  also:  that  although  White  was 
the  foreman  mainl}^  for  the  [)urpose  of  cutting  the  timber  under 
the  lease,  and  acting  for  the  defendants  in  this  suit,  and  being 
on  the  ground  and  acting  for  them  when  an  objection  was  made 
by  the  |)laintifF  for  the  reason  assigned  by  him.  White  had  the 
power  to  make  the  arrangement  claimed  by  the  defendant  to 
have  been  made;  and  if  the  plaintiff  refused  to  take  the  mill 


134  ESTATES    LESS    THAN    FREEHOLD. 

back  on  the  ground  assigned,  and  White  said,  '  All  right. 
Wait  a  few  days.  Major  Watson  will  be  up  to  surrender  the 
mill  over  to  you,' — and  he  relied  upon  it,  it  would  not  be  in 
the  possession  of  the  plaintiff  meanwhile,  but  it  would  still  be 
under  the  control  and  dominion  of  the  defendants."  The  court 
erred,  as  already  shown,  in  holding,  as  it  did  in  the  language 
above  quoted,  that  cutting  the  tinil)er  and  shutting  down  the 
mill  terminated  the  lease.  He  entirely  omitted  certain  obliga- 
tions resting  upon  defendants,  and  si)ecified  in  the  lease,  which 
have  above  been  pointed  out;  but  this  part  of  the  charge  was 
favorable  to  the  defendants,  and  was  in  exact  accord  with  their 
theory.  The  conversation  with  W^hite,  as  detailed  by  plaintiff, 
made  no  new  arrangement  with  the  defendants,  nor  changed  the 
terms  of  the  lease.  Plaintiff  testified  that  White  told  him  that 
he  had  no  authority  to  turn  over  the  mill ;  that  he  did  not  offer 
to  turn  it  over  ;  and  that  Watson  would  attend  to  that  when  he 
came  up.  Defendants  resided  in  Grand  Rapids,  while  the  mill 
was  situated  in  Osceola  County,  a  long  distance  away.  Only 
one  of  the  defendants  visited  the  mill  during  the  time  of  the 
lease,  and  he  only  once  or  twice.  White  was  their  sole  agent 
there,  with  authority  to  employ  and  discharge  men,  and  had  the 
supervision  of  the  entire  business.  If  he  had  no  authority  to 
make  the  statement  attributed  to  him,  which  counsel  and  court 
seem  to  have  construed  into  some  new  arrangement,  it  is 
equally  clear  that  he  had  no  authority  to  bind  his  principal  by 
turning  the  property  over  with  the  conditions  of  the  lease 
unfulfilled.  But  the  plaintiff,  under  the  case  made  by  him,  did 
not  recognize  the  lease  as  terminated,  or  that  he  was  making  a 
new  arrangement  contrary  to  its  terms.  The  evidence  of  this 
conversation  was  competent  only  for  the  purpose  of  showing 
that  the  lease  was  not  in  fact  surrendered.  It  was  a  part  of  the 
res  gestae.  The  charge  complained  of  was  erroneous,  and  im- 
properly limited  the  issue  involved.  It  is  evident,  however, 
that  the  jury  found  plaintiff's  statement  of  the  conversation  to 
be  correct.  This  being  so,  the  error  was  without  prejudice;  for, 
if  plaintiff's  version  were  correct,  there  was  no  surrender,  and 
no  change  of  possession.  The  court  erred,  but  against  the 
plaintiff,  in  saying  to  the  jury  that,  in  the  absence  of  spoken 
words,  the  mill  was  left  in  plaintiff's  hands  and  went  back  to 
him.  Plaintiff  was  employed  by  the  defendants,  was  himself 
discharged,  but  the  rent  was  unpaid.  He  lived  in  a  house  near 
by,  and  saw  all  the  preparations  for  closing.  But  the  legal 
result  of  all  this  was  not  to  restore  to  plaintiff  the  possession  and 
control  of  the  property,  because  the  mill  was  not  in  the  condition 
in  which  defendants  agreed  it  should  be  when  turned  over,  and 


SURRENDER COVENANT  TO  RETURN  IN  GOOD  CONDITION.  135 

defendants  had  signified  no  intention  not  to  perform  their  con- 
tract in  this  regard. 

3.  Defendants  insist  that  the  dechiration  is  based  solely  npoji the 
theory  that  the  fire  occurred  while  they  were  in  possession  of  the 
property;  that,  if  the  fire  had  occurred  after  the  termination  of 
the  leat-e,  defendants  could  only  be  held  liable  in  an  action  on 
the  case  for  negligence,  and  not  in  an  action  based  upon  the  vio- 
lation of  contract  obligations,  and  that,  therefore,  it  was  error 
for  the  court  to  instruct  the  jury  that,  "  even  if  the  mill  were 
turned  over  to  the  plaintiff,  yet  if,  by  reason  of  the  carelessness 
and  mismanagement  of  the  defendants,  fire  had  been  taken  from 
the  mill,  and  put  into  the  sawdust  adjoining,  it  would  constitute 
a  breach  of  contract;  and  if  the  fire  remained  there  without  the 
knowledge  of  the  plaintiff,  and  afterwards  broke  out  and  de- 
stroyed the  mill,  and  it  is  traceable  to  the  carelessness  of  the 
defendants,  then  they  are  liable."  The  declaration  set  forth  the 
contract  in  full;  alleged  the  duties  of  the  defend:ints  under  it; 
that  the  defendants  wholly  neglected  such  duty  and  their  obliga- 
tions under  the  contract;  neglected  to  keep  a  night  watchman  ; 
neglected  due  care  and  diligence  to  preserve  the  property  from 
damage  and  destruction  by  fire;  allowed  the  slabs,  sawdust  and 
other  debris  to  accumulate  in  and  about  and  immediately  adjoining 
the  mill ;  negligently  threw  and  deposited  the  fire  from  the  furnace 
into,  upon  and  about  such  sawdust  and  other  debris.  All  these 
acts  were  alleged  to  be  breaches  of  the  contract.  Plaintiff  planted 
his  right  of  action  solely  upon  the  violation  of  the  contract,  and, 
by  his  proof,  connected  the  injury  directly  with  such  violation. 
It  is  immaterial,  therefore,  whether  the  injury  resulted  before  or 
after  the  termination  of  the  lease.  In  either  event,  an  action 
would  lie  upon  the  contract.  It  is  true  the  declaration  alleged 
that  defendants  had  not  returned  the  property  to  plaintiff ;  but 
this  was  not  the  gist  of  the  action,  nor  did  it  of  itself  afford  an 
independent  ground  of  recovery.  We  think  the  instruction  was 
correct. 

4.  The  court  instructed  the  jury  that  whether  the  mill  was 
turned  over  to  plaintiff  or  not,  if  he  knew  of  the  fact  that  fire 
was  smoldering  in  the  sawdust  after  defendants'  agent  went  away 
and  left  it,  and  knew  of  the  approaching  danger  by  reason  of  it, 
and  took  no  measures  to  prevent  it  from  burning  the  mill,  it 
would  be  a  bar  to  this  action.  Defendants  insist  that  the  i)roofs 
conclusively  show  that  plaintiff  did  know  of  the  fire  there  ;  that 
it  was  likely  at  any  time  to  break  out ;  that  he  took  no  steps 
to  watch  it  or  prevent  it;  and  that,  therefore,  he  was  in  law 
guilty  of  contril)utory  negligence.  The  mill  was  closed  down 
about  4  o'clock  p.  m.  July  11th.     Plaiiitifi'tcstitied  that  the  mill 


136  ESTATES    LESS     THAN    FREEHOLD. 

had  cauirht  fire  from  the  sawdust  pile  shortly  before  a  temporary 
shutdown  for  the  4th  of  July;  that  he  had  no  knowledge  of  any 
fire  after  that;  that  on  the  11th,  when  the  mill  closed  down,  he 
told  White  that  "  it  was  very  dangerous  to  leave  the  mill  in  that 
condition  ;  that  the  mill  had  already  caught  fire,  and  was  liable 
to  again;  and  that  sawdust  held  tire  in  it  any  time  almost." 
Defendants  kept  a  watchman  upon  the  property  during  the  night 
of  the  llth,  and  plaintiff  testified  that  he  did  not  know  until 
after  the  fire  that  they  had  withdrawn  the  watchman.  The  fire 
occurred  on  the  morning  of  the  13th,  about  4  o'clock.  Cer- 
tainly the  plaintift'  was  not  called  upon  to  watch  the  property, 
or  take  any  steps  to  protect  it,  untd  he  knew  that  the  watch- 
man was  withdrawn,  and  that  defendants  had  withdrawn  all 
protection  over  the  property.  Whether  this  was  so  was  a 
question  of  fact  for  the  jury.  If  the  plaintiff's  evidence  be  true 
in  regard  to  throwing  the  fire  from  the  furnace  into  the  sawdust 
and  slabs.  White,  whose  negligence  was  the  negligence  of  the 
defendants,  was  guilty  of  gross  negligence,  and  a  gross  disre- 
gard of  plaintiff's  rights  and  his  own  employer's  interests. 
The  testimony  on  plaintiff's  part  showed  that  he  knew  that 
the  sawdust  pile  had  repeatedly  taken  fire,  and  that  he  had 
helped  to  put  it  out.  Under  these  circumstances,  the  law  will 
not  relieve  defendants  from  their  own  neo^liofence  without  show- 
ing  that  plaintiff  knew  that  they  had  abandoned  the  property, 
and  should  thereafter  exercise  no  care  or  control  over  it.  It  is 
not  entirely  clear  that  any  obligation  rested  upon  him  to  look 
after  the  property  until  the  lease  was  terminated.  Plaintiff  had 
no  actual  knowledge  that  there  was  fire  in  the  sawdust.  He 
knew  that  there  was  danger  of  its  being  there,  and  so  in- 
formed White.  White,  recognizing  the  danger,  and  knowing 
the  provisions  of  the  contract,  kept  a  watchman  the  following 
night,  and  then  withdrew  him,  without  any  notice  to  plaintift'. 
Under  these  circumstances,  it  would  be  difficult  to  discover  any 
legal  obligation  upon  the  part  of  plaintiff  to  watch  the  property. 
The  charge  was  as  favorable  to  the  defendants  as  was  justified 
by  the  evidence. 

Judgment  affirmed.     The  other  justices  concurred. 


Tenant  Must  Surrender  Possession  Before  Asserting  and 
Enforcing-  Title  Adverse   to  Landlord. 

Barlow  v.  Dahm,  97  Ala.  414;  12  So.  293;   see  Dabm  v.  Barlow,  93  Ala.  120; 

9  So.  598. 

Haralson,  J.     The  complainants  filed  this  bill  on  the  1st  day 
of  October,  1890,  against  John  Dahm,  Timothy  Meaher   James 


RIGHT   OF    LESSKE    TO    DENY    LESSOR'S    TITLE.  137 

K.  and  Augustus  Mealier,  for  the  sale  for  partition  of  certain 
real  estate  described  in  the  bill,  alleging  that  they  owed  an 
undivided  third  interest  therein,  and  the  defendants  the  other 
two-thirds  as  tenants  in  common,  and  that  it  could  not  be  equit- 
ably divided  in  kind.  Complainants  claim  to  have  derived  title 
to  their  one-thiid  undivided  interest  in  said  land  on  the  17th 
day  of  May,  1890,  by  deed  of  conveyance  from  one  Glennon  and 
his  wife.  The  defendants,  answering  the  bill,  claim  that  they 
and  those  from  whom  they  claim  have  been  in  the  open, 
notorious,  and  contiimous  adverse  possession  of  said  land  ever 
since  1847,  claiming  it  as  their  own,  and  exercising  acts  of 
ownership  over  it ;  that  the  complainants  knew  that  defendants 
were  in  the  adverse  possession  of  said  land,  claiming  it  as  their 
own  property,  when  they  received  said  deed  to  an  undivided 
third  of  it  from  said  Glennon  and  wife;  that  complainants 
were  tenants  of  defendants  under  a  written  lease,  and  have 
been  paying  their  rents  therefor,  and  they  have  never  repudiated 
said  tenancy,  nor  claimed  as  their  own  any  portion  of  said  land, 
but  occupy  the  whole  of  it  as  tenants  of  defendants,  and  not 
otherwise,  and  have  never  surrendered,  or  offered  to  surrender, 
the  possession  of  said  property  to  defendants.  The  proof 
shows  that  the  comi)lainants.  Barlow  &  Co.,  rented  and  went 
into  the  possession  of  the  whole  of  this  land  from  defendants, 
or  those  under  whom  they  claim,  on  the  1st  day  of  August,  1883, 
by  a  written  lease  of  that  date,  for  the  term  of  five  years  — 
from  that  date  to  the  1st  of  August,  1888 — at  the  annual 
renting  of  $150,  payable  quarterly,  with  the  privilege  of 
renewal  of  the  lease  for  five  years  more  at  the  same  rental ; 
and  that  on  the  1st  day  of  August,  1888,  according  to  the 
terms  of  said  lease,  complainants  accepted  a  written  renewal 
of  said  lease,  on  the  same  terms  as  before,  for  another  period 
of  five  years,  expiring  on  the  1st  day  of  August,  1893,  and 
had  paid  their  rents  up  to  the  1st  of  October,  1890,  the  end 
of  the  last  quarter,  and  were  in  possession  of  the  property. 
After  this  bill  was  filed  these  defendants  commenced  eject- 
ment in  the  circuit  court  of  Mobile  County  against  these 
complainants,  Barlow  &  Co.,  to  recover  the  possession  of 
said  land,  which  they  then  occupied  under  said  lease  from 
defendants,  the  contention  being  on  their  part  that,  because 
complainants  claimed  to  have  purchased  a  part  of  the  lease- 
hold from  a  thirtl  person,  during  the  continuance  of  their 
lease  from  defendants,  in  hostility,  as  defendants  claimed, 
to  their  title,  and  had  filed  this  bill  while  thus  in  pos- 
session, asking  a  sale  of  the  property  for  partition  be- 
tween   themselves    and    defendants    as    tenants    in    common, 


138  ESTATKS    LESS    THAN    FREEHOLD. 

they  thereby  repudiated  and  forfeited  their  lease,  and  defend- 
ants were  entitled  to  recover  the  possession  of  the  land.  In  that 
case  the  defendants,  complainants  here,  did  not  (jiicstion  the  title 
of  the  plaintiffs,  these  defendants,  to  two-thirds  of  tlie  land,  but 
claimed  that  they  had  leased  only  a  two-lhirds  interest  iu  the 
land  from  the  Meahers,  from  whom  these  defendants  derive 
title,  and  that  they  had  acquired  the  interest  of  the  other  co- 
tenant  of  the  Meahers.  The  case  was  decided  in  the  circuit 
court  against  these  defendants.  On  an  appeal  to  this  court  we 
held  that  these  facts  did  not  constitute  a  forfeiture  of  tlie  lease, 
and  that  the  payment  and  reception  of  the  rent  up  to  November 
1  (October  1),  1890,  was  a  recognition  of  the  lease,  and  an 
admission  of  an  existing  tenancy,  which  precluded  these 
defendants  from  insisting  in  that  action  upon  a  forfeiture 
of  the  lease.  Dahm  v.  Barlow,  93  Ala.  120 ;  9  South  Rep. 
598.  Without  going  into  the  details  of  this  case,  and  a  dis- 
cussion of  the  several  assignments  of  error,  we  confine  con- 
sideration of  the  cause  to  a  single  principle,  which  is  decisive 
of  it,  consistently  with  what  we  held  in  Dahm  v.  Barlow, 
supra.  The  only  ground  upon  which  complainants  seek  to 
maintain  this  bill  is  that  on  the  17lh  of  May,  1890,  during  the 
existence  of  their  lease  from  defendants,  and  their  ))ossession 
under  it,  they  acquired  by  purchase  from  a  third  person  an 
undivided  third  interest  in  the  land.  Admitting  that  defendants 
own  two-thirds  of  it,  and  asserting  their  own  claim  to  a  third 
interest  therein,  they  file  this  bill  for  a  sale  of  said  land  for  par- 
tition while  still  holding  possession  of  the  entire  premises  under 
their  lease  from  the  Meahers,  without  having  surrendered  the 
possession  to  their  landlords.  This,  as  tenants,  they  are  not 
permitted  to  do.  "  The  landlord  can  only  be  required  to  liti- 
gate title  with  his  tenant  upon  the  vantage  ground  of  posses- 
sion." Houston  V.  Farris,  71  Ala.  570;  Caldwell  v.  Smith,  77 
Ala.  167;  Norwood  v.  Kirby,  70  Ala.  397.  The  decree  of  the 
chancellor  is  affirmed. 

SECTION  II. 

TENANCY  At  WILL  AND  FROxM  YEAR  TO  YEAR. 

Say  V.  Stoddard,  27  Ohio  St,  478. 

Bryant  v.  Vincent,  100  Mich.  426;  59  N.  W.  169. 

Weed  V.  Lindsay,  88  Ga.  686;  15  S.  E.  836. 

McKissich  v.  Aslaleyj  98  CaL  422;  33  P.  729. 

Assignee  of  a  Tenant  at  Will  Acquires  No  Title  as  Against 

tlie  Lessoi*. 

Say  V.  Stoddard,  27  Ohio  St.  478. 
The  lease  provided  that  the  tenancy  was  to  last  "  as  long  as 
the  parties  shall  mutually  agree  to  continue  renting  under  this 


ASSIGNMENT    BY    TENANT    AT    WILL.  139 

agreement,"  to  pay  a  lental  of  $13.50  per  month,  and  either 
party  was  to  put  an  oiul  to  the  tenancy  by  givins;  four  days' 
notice  in  writing.  CeUy,  the  lessee,  sublet  two  rooms  to  pUiin- 
tiff,  who  reniaint  d  iii  possession  after  the  lessee  had  abandoned 
the  premises.  Defendant,  the  son  of  the  lessor,  eight  days 
afterward  took  forcible  possession  of  the  premises  against  the 
remonstrance  of  the  phiititiff,  removing  all  the  doors  and 
windows  of  the  rooms  of  the  house. 

Scott,  Cliicf  Judge.  The  contract  of  lease  between  StO(Uhud, 
Sr.,  and  Celey,  set  out  in  the  petition  in  the  court  below,  created 
l)y  its  ex[)ress  terms  a  tenancy  at  will.  True,  the  rent  was  to 
be  $13,  and  was  to  be  paid  by  Stoddard  &  Co.  out  of  Celey 's 
wages  monthly  or  half-monthly,  as  might  bo  most  convenient. 
But  the  renting  was  to  continue  for  "  so  long  as  the  parties 
shall  mntually  agree  to  continue  the  renting  under  this  agree- 
ment." And  again:  "  Either  party  may  put  an  end  to  said  rent- 
ing by  giving  tlie  other  I'arty  four  days'  notice,  in  writing,  that 
this  renting  is  to  cease  at  tlie  expiration  of  four  days  from  the 
service  of  t-uch  notice  on  the  other  party."  It  is  clear  from 
this  language  that  the  tenant  was  to  hold  at  the  will  of  the 
lessor,  though  while  the  tenancy  continued  the  rent  was  to  be 
paid  monthly  or  half-monthly.  The  character  of  the  tenancy 
is  not  affected  by  the  fact  that  four  days'  notice  of  its  determina- 
tion is  provided  for  in  the  contract  ;  for  in  a  general  tenancy  at 
will  reasonable  notice  must  be  given  by  the  party  whose  will 
determines  it,  to  the  other  paity ;  and  the  contract  here  fixes  the 
length  of  that  notice.  It  is  said  by  Blackstone:  "  An  estate  at 
will  is  where  lands  and  tenements  ate  let  by  one  man  to  another, 
to  have  and  to  hold  at  the  will  of  the  les^sor,  and  the  tenant  by 
force  of  this  lease  obtains  possession."  2  Bl.  Com.  145;  Lift. 
sec.  68.  Such  tenant  has  no  certain  indefeasible  estate,  nothing 
that  can  be  assigned  by  him  to  any  other,  because  the  lessor 
may  determine  at  his  will,  and  put  him  out  whenever  he  pleases. 
2  Bl.  Com.  145;  Taylor's  Landl.  &  Ten.  48. 

Tenancy  at  will  may  be  determined  by  implication  of  law. 
Such  implication  will  arise  on  the  death  of  either  of  the  parties. 
So,  if  a  tenant  at  will  assigns  over  his  estate  to  another,  who 
enters  on  the  land,  he  is  a  disseisor,  and  the  landlord  may  have 
an  action  of  ties[)ass  against  him.  Greenl.  Cruise  on  Real  Prop. 
244;  Taylor's  Landl.  &  Ten.  48. 

So,  also,  a  tlesertion  of  the  premises  by  the  lessee,  puts  an 
end  to  a  tenancy  at  will.  For  he  thereby  discontinues  his  lawfid 
possession  and  terminates  his  relation  to  his  lessor,  which  is  only 
of  a  pergonal  character,  and  he  ceases  to  have  any  interest  in 
the  premises  which  he  can  transfer  or  control. 


140  ESTATES    LESS    THAN    FREEHOLD. 

The  plaintiff  shows  by  his  petition  that  Stoddard,  the  lessor, 
died  November  1,  18(U),  leaving  the  defendant  his  devisee  of  the 
premises.  Celey,  the  lessee,  continued  in  possession,  till  De- 
cember 1,  when  he  undertook  to  sublet  a  part  of  the  premises  to 
the  plaintiff.  It  is  not  alleged  that  the  defendant  assented  to 
this  continuance  of  possession  or  subletting.  On  the  7th  of  De- 
cember^ the  lessee,  Celey,  removed  wholly  from  the  premises; 
and  eight  days  afterward  the  grievances  occurred  of  which  the 
phiintiff  acquired  no  rights  by  his  contract  with  Celey,  for  the 
latter  had  none  which  he  could  transfer.  The  facts  stated  do 
not  show  that  the  relation  of  landlord  and  tenant  was  ever  created 
between  the  parties  to  this  suit.  Tliere  was  neither  privity  of 
estate  nor  of  contract  between  them.  And  the  acts  complained 
of  were  but  the  lawful  exorcise  of  the  rights  incident  to  the  de- 
fendant's ownership  of  the  premises  and  are  not  charged  to  have 
been  attended  with  any  unnecessary  interference  either  with  the 
plaintiff's  person  or  property. 

We  think  the  court  below  properly  sustained  the  demurrer  to 
the  plaintiff's  petition,  and  its  judgment  is  affirmed. 


Tenancy  from  Year  to  Year,  when  Reservation  of  Rent 

Necessary. 

Bryant  v.  Vincent,  100  Mich.  426;  59  N.  W.  169. 

Grant,  J.  Plaintiff  brought  summary  proceedings  under  the 
statute  to  recover  possession  of  the  premises  described  in  the 
complaint  as  "  that  portion  of  the  basement  in  the  Brant  block, 
about  twenty-one  feet  in  width  by  about  seventy-five  feet  in 
length,  under  what  is  now  the  post-office  in  the  city  of  Benton 
Harbor,  being  the  south  seventy-five  feet  of  the  basement  room." 
Plaintiff  is  the  owner  of  the  premises  known  as  the  "  Hotel 
Benton  Block."  July  21,  1890,  he  executed  a  lease  to  the  de- 
fendant for  five  3'ears  of  the  hotel  and  portions  of  the  basement, 
not,  however,  including  the  portion  here  in  dispute.  Defendant 
held  possession  under  a  parol  agreement.  What  that  agreement 
was  is  the  main  fact  in  dispute.  Mr.  Brant's  version  is  that  it 
was  agreed  that  defendant  might  prepare  the  room  for  occupancy, 
and  use  it  until  complainant  needed  it  for  some  other  purpose. 
Defendant's  version  is  that  he  was  to  prepare  it  for  occupancy, 
and  have  possession  during  the  life  of  his  hotel  lease,  or  until 
♦July  II),  1895.  The  agreement  was  made  about  August  1,  1892. 
Complainant,  under  the  theory  that  defendant  was  tenant  at  will, 
gave  defendant  three  months'  notice  to  quit,  and  then  instituted 
this  suit.     The  court  instructed  the  jury,  that  if  they  found  the 


TENANCY  PROM  YEAR  TO  YEAR.  141 

agreement  as  claimed  by  complainant,  he  was  entitled  to  recover. 
If,  on  the  contrary,  they  found  the  agreement  as  claimed  by  de- 
fendant, it  was  a  tenancy  from  year  to  year,  and  his  possession 
was  lawful  until  the  end  of  the  second  year.  Verdict  and  judg- 
ment were  for  the  defendant. 

It  is  conceded  that,  under  the  defendant's  version,  the  lease, 
resting  in  parol,  was  void  under  the  statute  of  frauds.  Did  it 
constitute  a  tenancy  from  year  to  year?  We  think  it  did. 
Defendant's  testimony  tended  to  show  that  he  immediately  per- 
formed his  part  of  the  agreement,  and  fitted  up  the  room  at  an 
expense  of  $140.  He  had  been  in  possession  one  year  and  a 
greater  part  of  the  second,  without  ol)jection.  It  is  argued  on 
behalf  of  the  complainant,  that  there  was  no  annual  rent  reserved, 
and  therefore,  even  under  the  defendant's  evidence,  the  agree- 
ment constituted  a  tenancy  at  will.  It  is  true  that  "  the  reserva- 
tion of  annual  rent  is  the  leading  circumstance  that  turns  leases 
for  uncertain  terms  into  leases  from  year  to  year."  Jackson  v. 
Bradt,  2  Caines,  169  ;  Rich  v.  Bolton,  46  Vt.  84.  In  the  latter 
case  many  authorities  will  be  found  cited.  But  clearly  this  rule 
is  not  applicable  to  a  parol  tenancy  for  years,  void  under  the 
statute  where  the  entire  rent  has  been  paid  in  advance.  Under 
the  defendant's  evidence  he  had  a  lease  which,  if  reduced  to 
writing,  would  have  been  valid  for  five  years.  He  entered  into 
possession  of  the  term.  We  think  theie  is  no  well  considered 
authority  holding  that  he  was  not  a  tenant  from  year  to  year. 
The  fact  that  no  annual  rent  is  reserved  is  not  conclusive  of  the 
character  of  the  tenancy.  Where  the  owner  of  a  farm  rented  a 
portion  of  it  by  parol  for  four  years,  the  lessee  agreeing  to  in- 
close the  premises  with  a  fence  by  way  of  rent,  it  was  held  that 
a  tenancy  from  year  to  year  was  established.  People  v.  Rickert, 
8  Cow.  226;  Jackson  v.  Bryan,  1  Johns.  322;  Tayl.  Landl.  & 
Ten.,  §  56. 

The  court,  at  complainant's  request,  instructed  the  jury  that 
defendant  could  not  recover  under  any  agreement  made  before 
the  written  lease,  but  only  upon  a  verbal  one  made  afterwards. 
The  court,  under  objections,  permitted  evidence  of  conversations 
between  the  parties  in  regard  to  this  room  prior  to  the  execu- 
tion of  the  written  lease,  and  this -is  alleged  as  an  error,  on  the 
ground  that  all  prior  negotiations  were  merged  in  it.  This 
would  be  true  if  defendant  relied  upon  the  written  lease.  But 
the  testimony  was  competent  as  bearing  upon  the  subsequent 
parol  agreement.  Had  the  defendant  relied  upon  a  previous  or 
contemporary  agreement,  the  evidence  would  have  been  incom- 
petent. 

The  introduction    of  the    written  lease,   on  the  part   of    the 


142  ESTATES    LESS     THAN    FREEHOLD, 

defendant,  is  alleged  as  error.  We  do  not  see  how  this  could 
have  prejudiced  the  complainant.  But,  be  that  as  it  may,  it  was 
competent  to  introduce  it  for  the  purpose  of  showing  the  term 
of  the  parol  lease,  which  defendant  testified  was  to  run  to  the  end 
of  the  written  lease.  We  find  no  error  in  the  record,  and  the 
judgment  is  aflirmed.     The  other  justices  concurred. 


Possession  Under  a  Contract  for  a  Lease  is  a  Tenancy 

at    Will. 

Weed  u.  Lindsay,  86  Ga.  686;  15  S.  E.  836.  * 

Bleckley,  C.  J.  The  contract  of  June  4,  1889,  signed  by 
the  parties,  respectively,  a  copy  of  which  is  in  the  report,  was 
not  a  present  demise  or  lease  which  granted  to  Lindsay  &  Mor- 
gan an  immediate  estate  for  years,  but  was  an  agreement  to  give 
them  a  future  lease  for  ten  years  from  the  time  the  building  to  be 
erected  was  "  ready  for  occupation."  It  is  plain  from  the  nature 
of  the  agreement  and  the  language  of  the  instrument  that  the 
contract  was  executory  on  both  sides.  It  was  not  contemplated 
that  Lindsay  &  Morgan  should  become  tenants  to  Weed,  or  own- 
ers of  any  interest  in  the  premises,  or  that  they  should  be  liable 
for  the  payment  of  the  stipulated  rent,  if  Weed  did  not  erect  the 
building  and  make  it  ready  for  occupation.  Until  that  time 
should  arrive  they  were  to  remain  without  any  interest  in  the 
property  whatever.  If  the  building,  as  they  contend,  has 
not  yet  been  completed  and  made  ready  for  occupation 
according  to  the  agreement,  the  time  appointed  for  an  inter- 
est to  vest  in  them  as  lessees,  and  for  their  occupation  to 
commence,  has  not  yet  arrived;  and  so  they  are  without  any 
legal  ownership  of  an  estate  for  years,  or  of  a  right  to 
possession  by  virtue  of  such  ownership.  The  instrument 
executed  as  evidence  of  the  contract  contains  no  words  of 
present  demise  or  any  equivalent  terms,  nor  does  it  fix 
with  certainty  either  the  amount  of  the  annual  rent  to  be 
paid,  or  appoint  any  time  for  the  completion  of  the  building 
and  the  consequent  commencement  of  the  10  years'  term. 
The  amount  of  the  rent  was  to,  or  might,  depend  in  part  upon 
the  cost  of  the  building,  and  when  the  building  would  be  ready 
for  occupation  would  necessarily  depend  on  contingencies  to  be 
met  and  dealt  with  after  the  agreement  was  signed.  It  is  mani- 
fest that  the  words  *'  Upon  these  conditions,  Joseph  D.  Weed 
agrees  to  give  them  a  lease  for  teia  years  from  the  date  the 
building  is  ready  for  occupation,"  ought  to  be  construed,  not  as 
a  stipulation  for  further  assurance,  but  as  an  undertaking  to  ere- 


POSSESSION    UNDER    CONTRACT    FOR    LEASE.  143 

ate  a  lease  not  previously  existing,  and  to  pass  by  it  an  estate 
not  bofoio  conveyed  nor  attempted  lo  be  conveyed.  It  could  not 
have  \)vGn  the  intention  of  the  parties  either  that  Lindsay  & 
Morgan  should  be  owners  of  the  contemplated  terms  of  years, 
or  any  term  in  the  premises,  before  the  annual  rent  which  they 
were  to  ])ay  began  to  accrue,  or  that  this  rent  was  to  begin  to 
accrue  before  the  building  was  ready  for  occupation.  In  distin- 
guishing between  a  lease  and  a  mere  executory  agreement  for  a 
lease,  the  intention  of  tiie  parties,  as  manifested  by  the  wiiting, 
is  a  controlling  element.  Lloyd  Bldg.  Cont.,  §  88  ;  12  Amer.  & 
Eng.  Enc.  Law,  980  ;  1  Wood  Landl.  c&  Ten.,  §  179;  McAdam 
Landl.  &  Ten.,  §  41  ;  1  Tayl.  Landl.  &  Ten.,  §  37  et  seq.;  G  Law- 
son  Rights,  Rem  &  Pr.,  §  2801.  For  cases  illustrating  the  dis- 
tinction, see  Sturgion  v.  Painter,  Noy.  128  ;  Jackson  v.  Ashburner, 
5  Term  R.  163;  Hegan  v.  Johnson,  2  Taunt.  148;  Jackson  v. 
Bulklev,  2  Wend.  433;  Peoples.  Kelsey,  38  Barb.  269;  14  Abb. 
Pr.  372;  McGrath  v.  City  of  Boston,  103  Mass.  369;  Adams  v. 
Hanger,  4  Q.  B.  Div.  480;  Jackson  v.  Kisselbrack,  10  Johns. 
SSel  Kabley  v.  Gaslight  Co.,  102  Mass.  392. 

No  lease  creating  a  term  of  10  years,  and  vesting  the  same  in 
Lindsay  &  Morgan,  having  ever  come  into  existence  as  contem- 
plated by  the  agreement,  what  was  the  effect  of  admitting  them 
into  possession  by  virtue  of  the  consent  given  b}'  Weed  in  his 
letter  to  them  of  Septem'l)er  27,  1889,  in  which  he  says:  "  I 
simply  write  to  tell  you,  as  Mr.  Brown  told  me  you  wished  to 
begin  to  occupy  the  building  before  it  was  entirely  finished,  that 
the  rent  will  begin  from  the  time  you  begin  to  occ up}'  it.  1  have 
no  objection  whatever  to  your  moving  into  the  building  as  soon 
as  you  find  it  can  serve  your  convenience  to  do  so."  ('Mr. 
Brown  was  the  contractor  employed  by  Weed  to  construct  the 
building.)  Was  this  permission  a  license  to  occupy  for  10  years 
without  the  execution  of  any  lease,  or  was  it,  as  events  turned 
out  (possession  having  been  taken  under  it,  and  Lindsay  & 
Morgan  having  afterwards  refused  to  join  in  the  execution  of  a 
lease),  the  creation  of  a  tenancy  at  will?  We  think  it  was  the 
latter,  and,  no  rent  having  at  any  time  been  paid  and  accepted, 
this  is  in  accordance  with  the  current  of  authority.  1 
Tayl.  Landl.  &  Ten.,  §  60;  1  Washb.  Real  Prop.,  p. 
376;  Tied.  Real.  Prop.,  §  216;  6  Lawson  Rights,  Rem.  & 
Pr.,  §  2809;  12  Amer.  &  Eng.  Enc.  Law,  670;  Chapman  v. 
Towner,  6  Mees.  &  W.  100  ;  Anderson  v.  Railway  Co.,  3  El.  & 
El.  614;  Anderson  7j.  Prindle,  23  Wend.  616;  Dunne  y.  Trus- 
tees, 39  III.  578.  In  Hamerton  v.  Stead,  3  Barn.  &  C.  483, 
Littledale,  J.,  said:  "Where  parties  enter  upon  a  mere  agree- 
ment for  a  future  lease,  thev  are  tenants  at  will ;  and,  if  rent  is 


144  ESTATES    LESS    THAN    FREEHOLD. 

paid  under  the  agreement,  they  become  tenants  from  year  to 
year,  determining  on  the  execution  of  the  lease  contracted  for, 
that  being  the  primary  contract."  Perhaps  as  the  hiw  of 
remedy  in  the  superior  court  now  stands  the  payment  of  rent 
would  have  raised,  not  merely  a  tenancy  from  year  to  year,  but 
one  from  the  whole  term  covered  by  the  lease.  Walsh  v.  Longs- 
dale,  21  Ch.  Div.  9.  It  is  plain  that,  consistently  with  the 
written  agreement  of  the  parties,  Lindsay  &  Morgan  would  have 
no  right  to  occupy  and  use  the  premises  for  10  years  unless  they 
were  willing  to  pay  therefor  the  stipulated  rent,  nor  unless  they 
were  willing  to  occupy  as  lessees,  and  not  merely  as  tenants  at 
will.  In  this  litigation  they  seek,  as  they  did  in  some  of  the 
preliminary  steps  which  led  to  it,  to  take  the  position,  and  have 
all  the  rights  of  lessees  on  terms  different  from  any  which  Weed 
has  ever  assented  to;  that  is,  they  want  to  hold  at  a  less  annual 
rent  than  they  have  agreed  to  pay.  They  make  this  claim  be- 
cause, as  they  contend,  Weed  has  not  erected  and  made  ready 
for  occupation  such  a  building  with  respect  to  plan  and  finish  as 
was  contemplated.  If  this  contention  be  well  founded  in  fact, 
the  result  will  be,  not  that  they  could  occupy  for  10  years  on 
terms  different  from  those  agreed  upon,  but  that  they  could,  if 
they  did  not  choose  to  waive  their  objection  and  unite  in  the 
lease  and  pay  the  stipulated  rent,  exercise  their  option  between 
vacating  the  premises,  and  compelling,  by  a  proper  equitable 
action,  a  specific  performance  on  the  part  of  Weed  of  his  under- 
taking. Weed's  violation  of  his  contract  would  also  furnish  a 
cause  of  action  in  their  favor  for  any  damages  resulting  from  his 
failure  to  comply.  Perhaps  if  they  had,  under  protest,  paid 
rent  according  to  the  contract,  they  might  have  done  so  without 
surrendering  any  substantial  right,  legal  or  equitable.  Lamare 
V.  Dixon,  L.  R.  6  H.  L.  514.  When  this  proceeding  was  com- 
menced, they  had  not  pursued  any  course  open  to  them,  but 
had  endeavored  to  pursue  one  not  open  ;  they  had  declined  to 
join  in  the  lease  ;  had  not  paid  rent  at  the  stipulated  rate;  had 
entered  no  suit  for  specific  performance;  and  had  refused  to 
vacate  the  premises.  Having  brought  themselves  into  the  posi- 
tion of  mere  tenants  at  will,  section  2291  of  the  code  applies  to 
them.  The  two-months  notice  having  been  given,  they  were 
subject  to  eviction  as  tenants  holding  over.  Code,  §§  4077- 
4081.  The  pleadings  in  the  case  were  simply  the  afiidavit  and 
counter  affidavit  provided  for  by  the  sections  of  the  Code  last 
cited.  The  pending  application  in  the  superior  court  to  enjoin 
the  prosecution  of  this  proceeding  was  not  operative,  because 
no  injunction,  temporary  or  permanent,  had  been  ordered,  or 
any  restraining  order  granted.     What  we  have  ruled  embraces 


TENANCY  FKOM  YEAR  TO  YEAR  TERMINATED  BY  NOTICE.   145 

all  that  is  fuiuliimental  in  the   case  and   effectually  controls  the 
final  result  of  this  proceeding  in  the  city  court.     The  court  erred 
in  not  granting  a  new  trial. 
Judgment  reversed. 


Tenancy  from  Year  to  Year  Terminated  by  Notice. 

McKissick  v.  Ashby,  98  Cal,  422;   33  P.  729. 

Commissioner's  decision  affirmed  by  the  court. 

Belcher,  C.  This  action  is  in  the  nature  of  ejectment,  and 
was  commenced  April  22,  1889.  It  is  alleged  in  the  complaint 
that  the  plaintiff  now  owns,  and  for  more  than  eight  years  he 
and  his  grantors  have  owned,  certain  described  lands  in  Lassen 
County;  that  defendant  leased  the  said  lands  of  plaintiff  from 
year  to  year,  commencing  on  the  1st  day  of  March,  1886,  down 
to  the  1st  day  of  March,  1887,  for  the  sura  of  $180  rent,  which 
defendant  agreed  and  promised  to  pay  plaintiff  annually  there- 
for; that  on  the  27th  day  of  February,  1889,  plaintiff  duly 
notified  defendant  that  he  would  not  renew  the  lease,  and 
requested  him  to  vacate  and  surrender  the  premises  ;  that  de- 
fendant refused,  and  still  refuses,  to  vacate  the  premises,  or  to 
deliver  the  same  to  the  plaititifl,  and  has  withheld,  and  still 
withholds,  the  possession  thereof  from  the  plaintiff,  and  has 
ousted  and  ejected  plaintiff  therefrom  to  his  damage  in  the  sum 
of  $50;  that  defendant  has  failed  and  refused  to  pay  to  plaintiff 
the  said  rent  for  the  year  next  before  the  1st  day  of  March, 
1889,  amounting  to  $180;  and  that  the  whole  of  that  sum  is 
due  and  owing  to  plaintiff  from  defendant.  Wherefore  judg- 
ment is  asked  that  defendant  be  ejected  from  the  said  lands,  and 
the  plaintiff  restored  to  the  possession  thereof,  and  also  for 
damages  in  the  sum  of  $50,  and  for  rents  due  in  the  sum  of 
$180,  with  costs.  A  general  and  special  demurrer  to  the  com- 
plamt  was  interposed  by  the  defendant,  but  what  ruling,  if  any, 
was  made  upon  it  does  not  api^ear  from  the  record.  An  answer 
was  also  filed  by  defendant,  denying  all  the  avertments  of  the 
complaint.  The  case  was  tried  by  the  court,  without  a  jury, 
and  the  findings  upon  all  the  issues  were  in  favor  of  the  plaintiff, 
except  that  the  damages  were  fixed  at  one  dollar.  Judgment 
was  then  entered  in  accordance  with  the  findings,  from  which, 
and  from  an  order  denying  his  motion  for  new  trial,  the  defend- 
ant appeals. 

1.  Appellant  contends  that  the  complaint  fails  to  state  facts 
sufficient  to  constitute  a  cause  of  action,  because  —  First,  if  it 
is  regarded  as  a  complaint  for  unlawful  detainer,  then,  in  order 

10 


146  ESTATES    LESS    THAN    FREEHOLD. 

to  maintain  the  action,  it  was  necessary  that  a  demand  for  the 
possession  of  the  premises  should  have  been  made  after  tin; 
expiration  of  the  term,  and  no  such  demand  is  alleged  to 
have  l)een  made;  and,  second,  if  it  is  regarded  as  an  ordinary 
complaint  in  ejectment,  then  an  averment  that  defendant  was  in 
possession  of  the  demanded  premises,  or  of  some  part  thereof, 
at  the  time  of  the  commencement  of  the  action,  was  necessary, 
and  ihat  no  such  averment  was  made.  Section  1161  of  the  Code 
of  Civil  Procedure,  cited  by  appellant,  provides  as  follows:  *<  A 
tenant  of  real  property  for  a  term  less  than  life  is  guilty  of 
unlawful  detainer  (1)  when  he  continues  in  possession,  in  person 
or  by  sul)tenant,  of  the  propeity  or  any  part  thereof,  after  the 
expiration  of  the  term  for  which  it  is  let  to  him,  without  the 
permission  of  his  landlord,  or  the  successor  in  estate  of  his  land- 
lord, if  any  there  he;  but  in  case  of  a  tenancy  at  will,  it  must 
first  be  terminated  by  notice  as  prescribed  in  the  Civil  Code." 
Here  the  defendant  was  not  a  tenant  at  will,  but  for  a  fixed  term, 
which  expired  March  1,  1889.  The  hiring  of  a  thing  terminates 
at  the  end  of  the  term  agiecd  upon.  Section  1933,  Civil  Code. 
The  notice  served  was  only  to  the  effect  that  plaintiff  would  not 
renew  the  lease,  and  that  defendant  must  give  up  possession  of 
the  property.  Such  a  notice  was  not  necessary,  but  it  served  to 
inform  defendant  that,  if  he  continued  in  possession  of  the  prop- 
erty after  the  expiration  of  the  term  for  which  it  was  let  to  him, 
he  would  do  so  without  the  permission  of  his  landlord,  and  would 
be  guilty  of  unlawful  detainer.  Under  the  facts  stated,  we 
think  the  plaintiff  had  a  right  to  re-enter  when  the  term  expired, 
and  to  maintain  an  action  for  possession  without  previous  notice 
or  demand.  Section  793,  Civil  Code;  Canning  v.  Fibush,  77 
Cal.  196;  19  Pac.  Rep.  376.  And,  if  the  complaint  is  regarded 
as  an  ordinary  one  in  ejectment,  we  think  the  same  conclusions 
must  follow.  It  alleges,  in  substance,  that  plaintiff  leased  the 
demanded  premises  to  the  defendant ;  that  the  lease  had  expired ; 
and  that  defendant  refuses  to  vacate  the  premises,  and  "  has 
withheld,  and  still  withholds,  the  possession  thereof  from  the 
plaintiff."  This  clearly  implies  that  defendant  is  in  possession  ; 
and  it  must  be  held  a  siifficient  averment  of  that  fact,  certainly, 
in  the  absence  of  a  demurrer  that  the  complaint  is  ambiguous  or 
uncertain  in  that  regard.     But  no  such  objection  was  taken. 

2.  Appellant  also  contends  that  the  findings  were  all  contrary 
to  the  evidence,  and  not  justified  thereby.  There  was,  however, 
evidence  tending  to  support  the  findings,  and,  under  the  well- 
settled  rule  as  to  conflicting  evidence,  we  think  it  must  be  held 
suflScient  here.  The  defendant  did  not,  in  giving  his  testimony, 
deny,  so  far  as  we  can  discover,  that  he  held  the  land  in  contro- 


TENANCY  FROM  YKAR  TO  YEAR  TERMINATED  BY  NOTICE.   147 

versy  during  the  years  1887  and  1888  uikIct  leases  from  the 
plaintiff,  hut  he  claimed  that  the  lease  was  not  renewed  for  the 
year  1888.  Adniittin<j::  this  to  be  so,  atill  he  could  not  deny  the 
plaintiff's  title  without  first  surrendering  to  him  the  possession, 
and  this  he  had  evidently  failed  and  refused  to  do. 

3.  When  the  plaintiff  was  upon  the  stand  as  a  witness  in  his 
own  behalf,  his  attorney  asked  him  the  following  questions: 
"  State  whether  oi-  not,  since  lu;  went  on  it,  in  1886,  up  to  the 
time  you  made  the  demand  on  him,  he  continues  to  occupy  and 
use  the  land.  State  whether  or  not  the  defendant  still  occupies 
this  disputed  tract  of  laud."  The  questions  were  objected  to  as 
irrelevant,  incompetent,  and  immaterial,  and  the  objections  were 
overruled,  and  exceptions  taken.  It  is  urged  that  these  rulings 
were  erroneous  but  we  see  no  error  in  them.  It  was  entirely 
proper  for  the  plaintitl'  to  show  that  defendant  continued  in  the 
occupancy  of  the  land  and  was  withholding  its  possession  from 
him. 

4.  The  i)laintiff  was  permitted,  over  the  objections  of  de- 
fendant, to  read  in  evidence  a  copy  of  the  recoid  in  the  United 
States  land  office  at  Susanville,  certified  by  the  register  of  tlie 
office  to  be  a  true  and  correct  copy,  showing  that  on  May  15, 
1880,  one  John  P.  McKissick  had  entered  the  lands  in  question 
as  desert  lands:  and  sdso  a  deed  executed  by  the  said  McKissick 
on  December  9,  1881,  conveying  the  said  lands  to  the  phiintiff. 
It  is  urged  now  that  the  copy  offered  was  not  competent  evi- 
dence to  show  the  entry;  that  the  only  competent  evidence  for 
that  purpose  would  have  been  a  certified  copy  of  the  certificate 
of  purchase  or  receiver's  recei|)t,  the  original  of  which  was  in 
the  general  land  office  at  Washington;  and  that  the  deed  was  not 
admissible,  for  the  reason  that  the  plaintifl'  failed  to  connect 
himself  with  the  government  title,  or  show  that  the  title  had 
passed  from  the  government.  We  see  no  prejudicial  error  in 
the  rulings  com[)lain(Ml  of  under  this  head.  The  object  undoubt- 
edly was  to  show  privity  with  the  government,  but,  without  such 
showing,  the  action  might  be  maintained.  We  advise  that  the 
judgment  and  order  be  affirmed. 

We  concur:  Searles,  C. ;  Haynes,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion 
the  judgment  and  order  are  affirmed. 


148  ESTATES     LESS   THAN   FREEHOLD. 

SECTION  III. 

ESTATES    AT  SUFFERANCE. 
Russell  V.  Fabyan,  34  N.  II.  218. 

Tenancy  at   Sufferance  Explained. 

Russell  V.  Fabyau,  34  N.  H.  218. 

Bell.  J.  Fabyan  entered  into  possession  of  the  premises  in 
question  under  a  written  lease,  to  continue  for  five  years 
from  Marcii  20,  1847.  He  remained  in  possession  until  April 
29,  1853,  when  the  buildings  were  burned  down,  more  than  a 
year  after  the  lease  expired.  During  the  interval  between  the 
20lh  of  March,  1852,  and  April  29,  1853,  he  was  either  a  tenant 
at  sufferance,  a  tenant  at  will,  or  a  disseisor.  The  general 
principle  is  that  a  tenant  who,  without  any  agreement,  holds 
f)ver  after  his  term  has  expired,  is  a  tenant  at  sutt'erance.  2  Bla. 
Com.  150;  4  Kent  Com.  116:  Livingston  v.  Tanner,  12  Barb. 
483.  No  act  of  the  tenant  alone  can  change  this  relation  ;  but  if 
the  lessor  or  owner  of  the  estate,  by  the  acceptance  of  rent,  or 
by  any  other  act  indicates  his  assent  to  the  continuance  of  the 
tenancy,  the  tenant  becomes  a  tenant  at  will,  upon  the  same 
terms,  so  far  as  they  are  applicable,  of  his  previous  lease.  Con- 
way V.  Starkweather,  1  Denio,  113. 

In  this  case  there  is  no  evidence  to  justify  an  inference  of 
assent  by  the  lessor  to  any  continuance  of  the  tenancy,  but,  on 
the  contrary,  very  direct  and  conclusive  evidence,  in  the  demand 
of  possession,  to  the  contrary  ;  while  the  reply  made  to  that 
demand  by  Fabyan  negatives  any  consent  on  his  part  to  remain 
tenant  of  the  plaintiff.  There  was,  then,  no  tenancy  in  fact 
between  these  parties  at  the  titne  of  the  fire,  and  the  defendant 
was  consequently  either  a  disseisor  or  a  tenant  at  sufferance. 

When  the  demand  of  possession  was  made  upon  Fabyan,  upon 
the  22d  of  March,  1852,  the  demand  was  refused,  Fabyan  say- 
ing he  had  taken  a  lease  of  the  property  from  Dyer.  The  pre- 
vious demands  seem  to  have  been  premature,  and  before  the 
expiration  of  the  lease,  but  they  were  refused  upon  the  same 
ground  as  the  last,  and  that  refusal  might  constitute  a  waiver  of 
any  ol)jection  to  the  time  of  their  being  made. 

Such  a  denial  of  the  right  of  the  lessor,  though  not  a  forfeit- 
ure of  a  lease  for  years,  is  sufficient  to  put  an  end  to  a  tenancy 
at  will,  or  at  suflferance,  if  the  lessor  elects  so  to  regard  it;  and 
he  may,  if  he  so  choose,  bring  his  action  against  the  tenant  as  a 
disseisor,  without  entry  or  notice,  and  may  maintain  against  him 


ESTATES  AT  SUFFERANCE.  149 

any  action  of  tort,  as  if  he  had  originally  entered  by  wrong. 
Delaney  v,  Ga  Nun,  12  Barb.  120. 

But  as  this  result  de[)eiid8  on  the  lessor's  election,  and  nothing 
appears  in  the  present  case  to  indicate  such  election,  the  tenant 
must  be  regarded  as  a  tenant  at  sufferance. 

To  ascertain  the  liability  of  a  tenant  at  sufferance  for  the  loss 
of  buildings  by  fire  it  becomes  material  to  inquire  what  is  the 
nature  of  this  kind  of  tenancy  ;  and  we  have  examined  the  books 
accessible  to  us,  to  trace  the  particulars  in  which  it  differs  from 
the  case  of  a  party  who  originally  enters  by  wrong. 

All  the  books  agree  that  he7-etains  the  possession  as  a  wrong- 
doer, just  as  a  disseisor  acquires  and  retains  his  possession  by 
wrong.  Den  v.  Adams,  7  Hals.  99;  2  Bla.  Com.  150;  4  Kent 
Com.  116.  By  the  assent  of  the  parties  to  the  continuance  of 
the  possession  thus  wrongfully  obtained  or  retained,  the  wrong 
is  purged,  and  the  occupant  becomes  a  tenant  at  will  or  other- 
wise to  the  owner.      10  Vin.  Ab.  416  ;  Estate  D,  C,  2. 

If  no  buch  assent  appears,  the  tenant  is  entitled  to  no  notice 
to  quit.  Jackson  v.  McLeod,  12  Barb.  483;  12  Johns.  182;  1 
Cru.  Dig.  tit.  9,  §  10. 

The  owner  may  make  his  entry  at  once  upon  the  premises,  or 
he  may  commence  an  action  of  ejectment  or  real  action.  Liv- 
ingston V.  Tanner,  12  Barb.  483;  Den  v.  Adams,  7  Hals.  99. 
And  it  makes  no  difference  that  the  lessee,  after  his  terra  has 
expired,  has  taken  a  new  lease  for  years  of  a  stranger  rendering 
rent,  which  has  been  paid  ;  for  he  still  remains  tenant  at  suffer- 
ance as  to  the  first  lessor,  as  we  held  in  Preston  v.  Love,  Noy, 
120;    10  Vin.  Ab.  416. 

We  have  been  able  to  discover  but  one  point  of  difference 
between  the  case  of  the  disseisor  and  the  tenant  at  sufferance, 
which  is  that  the  owner  cannot  maintain  an  action  of  trespass 
against  his  tenant  by  sufferance  until  he  has  entered  upon  the 
premises;  4  Kent  Com.  116;  a  point  to  which  we  shall  have 
occasion  further  to  advert. 

Upon  this  view  the  liability  of  the  defendant  Fabyan,  to  answer 
for  the  loss  by  fire,  which  is  the  subject  of  this  suit,  is  regulated, 
not  by  the  rule  applicable  to  tenants  under  contract,  or  holding 
by  right,  l)ut  by  that  which  governs  the  case  of  the  disseisor  and 
unqualified  wrong-doer. 

By  Stat.  6  Anne,  chap.  31,  made  perpetual  10  Anne,  chap.  14 
(1708,  1712),  no  action  or  process  whatever  shall  be  had,  main- 
tained, or  prosecuted  against  any  person  in  whose  house  or 
chamber  any  fire  shall  accidentally  begin.  Co.  Litt.  67,  n.  377; 
3  Bla.  Com.  228,  n.  ;  1  Com.  Dig.  209,  Action  for  Negligence, 
A.  6.     It  is  not  necessary  to  consider  whether  this  statute  has 


150  ESTATES   LESS   THAN   FREEHOLD. 

been  adopted  here,  though  it  is  strongly  recommended  by  its 
intrinsic  equity,  because  at  all  events  a  different  rule  applies  in 
this  case. 

The  mere  disseisor  or  trespasser,  who  enters  without  right 
upon  the  land  of  another,  is  responsible  for  any  damage  which 
results  from  any  of  his  wrongful  acts.  Such  a  disseisor  is  liable 
for  any  damage  occasioned  by  him,  whether  willful  or  negligent. 
He  had  no  right  to  build  any  fire  upon  the  premises,  and  if  mis- 
fortune resulted  from  it  he  must  bear  the  loss. 

For  this  purpose  the  defendant  Fabyan  stands  in  the  position 
of  a  disseisor. 

II.  Assuming  that  Fabyan  is  liable  for  the  loss  of  these  build- 
ings, the  question  arises,  whether  he  is  liable  in  this  form  of 
action  ;  and,  as  we  have  remarked,  he  is  not  liable  in  trespass. 
Chancellor  Kent  (4  Com.  116)  says:  "A  tenant  at  sufferance 
is  one  that  comes  into  possession  of  land  by  lawful  title,  but 
holdeth  over  by  wrong  after  the  determination  of  his  interest. 
He  has  only  a  naked  possession,  and  no  estate  which  he  can 
transfer  or  transmit,  or  which  is  capable  of  enlargement  by 
release,  for  he  stands  in  no  privity  to  his  landlord,  nor  is  he 
entitled  to  notice  to  quit;  and,  independent  of  the  statute,  he 
is  not  liable  to  pay  any  rent.  He  holds  by  the  laches  of  the 
landlord,  who  may  enter  and  put  an  end  to  the  tenancy  when 
he  pleases.  But  before  entry  he  cannot  maintain  an  action  of 
trespass  against  the  tenant  by  sufferance.''^  1  Cru.  Dig.,  tit.  9, 
chap.  2;  Kising  v,  Stanard,  17  Mass.  282;  Keay  v.  Goodwin, 
16  Mass.  1,  4;  2  Bla.  Com.  150;  Co.  Litt.  57,  b;  Livingston  v. 
Tanner,  12  Barb.  483  ;  Trevillian  v.  Andrew,  5  Mod.  384. 

If,  then,  Fabyan  is  answerable  at  all,  he  must  be  liable  to  the 
action  of  trespass  on  the  case.  There  is  no  evidence  of  any 
entry,  and  the  demand  of  possession,  whatever  its  other  effects 
may  be,  is  not  an  entry,  nor  do  we  find  it  made  equivalent  to  an 
entry. 

The  case  of  West  v.  Trende,  Cro.  Car.  187;  s.  c.  Jones,  124, 
224,  is  a  decision  that  case  lies  in  such  a  case. 

"  Action  upon  the  case.  Where  he  was  and  yet  is  possessed 
of  a  lease  for  divers  years  adtunc  et  adhuc  ventur,  of  a  house, 
and  being  so  possessed  demised  it  to  the  defendant  for  six 
months,  and  after  the  six  months  expired,  the  defendant  being 
permitted  by  the  plaintifi"  to  occupy  the  said  house  for  two 
months  longer,  he,  the  defendant,  during  the  time  pulled  down 
the  windows,  etc.  Stone  moved  in  arrest  of  judgment  that  thi-^ 
action  lies  not,  for  it  was  the  plaintiff's  folly  to  permit  the 
defendant  to  continue  in  possession,  and  to  be  a  tenant  at  suf- 
ferance, and  not  to  take  course  for  his  security  ;  and  if  he  should 


ESTATES    AT   SUFFERANCE.  151 

have  an  action,  it  should  be  an  action  of  trespass,  as  Littleton, 
§  71.  If  tenant  at  will  hath  destroyed  the  house  demised,  or 
shop  demised,  an  action  of  trespass  lies,  and  not  an  action  upon 
the  case.  But  all  the  court  conceived  that  an  action  of  trespass 
or  an  action  upon  the  case  may  well  be  brought,  at  the  plaintifTs 
election,  and  properly  in  this  case  it  ought  to  be  an  action  upon 
the  case,  to  recover  as  much  as  he  may  he  damnified,  because  he 
is  subject  to  an  action  of  waste  ;  and  therefore  it  is  reason  that 
he  should  have  his  remedy  by  action  upon  the  case.  Where- 
upon rule  was  given  that  judgment  should  be  entered  for  the 
plaintiff." 

III.  It  seems  clear  that  if  Fabyan  is  to  be  regarded  as  a 
wrong-doer  in  retaining  the  possession  of  the  plaintiff's  prop- 
erty after  his  lease  had  expired,  all  who  aided,  assisted,  en- 
couraged, or  employed  him  to  retain  this  possession,  must  be 
legarded  as  equally  tort-feasors,  and  equally  responsible  for 
any  damage  resulting  from  his  wrongful  acts.  No  more  direct 
act  could  be  done  to  encourage  a  tenant  in  keeping  possession, 
than  that  of  leasing  to  him  the  property,  unless  it  was  that  of 
giving  hira  a  bond  of  indemnity,  such  as  is  stated  in  this  case. 
In  wrongs  of  this  class  all  are  principals,  and  the  defendant, 
Dyer,  must  be  held  equally  responsible  with  Fabyan ;  and  it 
seems  clear  that  as  Dyer  could  justify  in  an  action  of  trespass 
under  the  authority  of  Fabyan,  so  as,  like  him,  not  to  be  liable  in 
that  action,  he  must  be  liable  with  him  in  an  action  upon  the  case. 

Whether  the  allegations  of  the  declarations  are  suitable  to 
charge  either  of  the  defendants,  we  have  not  considered,  as  the 
court  have  not  been  furnished  with  a  copy. 

IV.  The  case  of  Russell  v.  Fabyan,  7  Foster,  529,  is  not  to 
be  regarded  as  a  decision  of  the  question  raised  in  this  ease,  in 
relation  to  a  sale  of  a  supposed  right  of  redemption  as  belong- 
ing to  Burnham,  after  the  first  levy  made  upon  the  property. 
It  was  there  held,  upon  the  facts  appearing  in  that  case,  that 
independent  of  the  question  of  fraud  in  Burnham's"  deed  to 
Russell,  all  Burnham's  right  of  redeeming  the  levy,  which  might 
be  made  upon  the  attachment  subsisting  at  the  time  of  the  deed, 
and  of  course  good  against  it,  passed  to  Russell.  Upon  this 
point  there  can  l)e  no  question,  and  none  is  suggested.  Th<' 
question  then  arose  whether,  if  Russell's  deed  proved  to  be 
fraudulent  as  to  the  creditors  of  Burnham,  the  right  of  redemp- 
tion did  not  pass  to  Dyer,  by  the  sale  on  his  second  execution, 
so  as  to  invalidate  the  tender  made  by  Russell.  This  question 
might  have  been  met  and  decided,  but  the  case  did  not  require 
it.  It  was  held  that  whether  Russell's  title  was  good  or  bad, 
Fabyan,  as  his  tenant,  could  not  dispute  it.     He  could  be  dis- 


152  •  ESTATES  LESS  THAN  FREKIIOLD. 

charged  from  his  liability  to  pay  his  rent,  which  was  the  subject 
of  tiiat  action,  ouly  by  an  eviction  by  the  lessor,  or  by  some  one 
who  had  a  paramount  title  to  his ;  a  mere  outstanding  title  not 
put  in  exercise  is  not  a  defense.  The  defendant  relied  on  an 
eviction  on  the  14th  of  June,  1848,  as  his  defense.  The  sale  of 
the  right  of  redemption  was  made  on  the  31st  of  July  following, 
and  after  that  date  there  was  no  eviction,  so  that  the  attempt 
there  was  merely  to  show  an  outstanding  but  dormant  title, 
which  it  proved  would  be  no  defense.  And  the  court  took  the 
ground  that  Fabyan  stood  in  no  position  to  raise  a  question  as  to 
the  validity  of  Russell's  title,  except  so  far  as  the  opposing  title 
was  the  occasion  of  some  disturbance  of  his  estate.  So  far  as 
the  principles  stated  in  that  case  are  concerned,  they  appear  to 
us  sound  and  unanswerable.  Whether,  if  the  case  had  taken  a 
different  form,  the  result  would  have  been  in  any  degree  differ- 
ent, it  is  not  necessary  to  inquire. 

By  our  statute,  every  debtor  whose  land  or  any  interest  in 
land  is  sold  or  set  off  on  execution,  has  a  right  to  redeem  by 
paying  the  appraised  value,  or  sale  price,  with  interest  within 
one  year.  Eev.  Stat.,  chap.  195,  §  13;  chap.  196,  §  5  (Comp. 
Stat.  501,  502).  This  right  to  redeem  is  also  subject  to  be  levied 
upon  and  sold,  as  often  as  a  creditor  supposes  he  can  realize 
any  part  of  his  debt  by  a  sale,  until  some  one  of  the  levies  or 
sales  becomes  absolute.  But  these  sales  have  each  inseparably 
connected  with  them  the  right  of  redemption.  If  the  debtor  has 
parted  with  his  title  before  the  levies  are  made  while  the  prop- 
erty is  under  an  attachment,  that  right  of  redemption  is  vested 
in  his  grantee,  who,  being  the  party  interested  (Rev.  Stat., 
chap.  196,  §  14),  may  redeem  any  sale  or  levy,  if  he  pleases; 
the  effect  of  his  payment  or  tender  for  this  purpose  being 
of  course  dependent  upon  the  state  of  facts  existing  at  the 
time. 

So,  if  there  is  no  attachment  upon  the  property  at  the  time 
of  the  debtor's  conveyance,  but  his  creditors  levy  upon  the 
property,  upon  the  ground  that  his  conveyance  was  not  made  in 
good  faith,  and  upon  an  adequate  consideration,  and  so  is  fraud- 
ulent and  void  as  to  them,  the  effect  is  the  same.  Any  creditor 
may  levy  his  execution  upon  the  right  of  redemption  of  any 
prior  levy  or  sale,  the  deed  of  the  debtor  being  without  legal 
o})eration  to  place  either  the  property  itself  or  any  interest  in  it 
out  of  the  reach  of  his  process.  And  the  right  of  redemption, 
so  long  as  it  retains  any  value  in  the  judgment  of  any  creditor, 
remains  liable  to  his  levy ;  but  when  the  creditors  have  ex- 
hausted their  legal  remedies,  the  right  of  redemption,  necessa- 
rily incident  to  every  levy  on  real  estate,  still  remains,  and  it  is 


ESTATES   AT   SUFFERANCE.  153 

the  right  not  of  the  debtor,  but  of  his  grantee,  who  may  exercise 
it  at  his  pleasure. 

This  we  conceive  was  the  position  of  the  present  case.  The 
first  levy  by  Dyer  being  founded  on  his  attachment,  took  pre- 
cedence of  Russell's  deed,  but  Russell  had  still  the  right  to 
redeem  as  grantee  of  Burnham,  whether  his  deed  was  valid  as  to 
creditors  or  not.  When  the  right  of  redeeming  the  first  levy 
was  sold,  on  the  ground  that  the  deed  to  Russell  was  fraudulent 
and  invalid,  a  right  of  redemption  still  remained  to  Russell,  and 
he  had  a  right,  as  a  party  interested  in  the  land,  to  })ay  or  tender 
the  amount  of  the  first  levy  to  Dj'er,  and  so  to  discharge  it.  By 
that  payment  or  tender  it  was  effectually  discharged,  whatever 
might  be  the  rights  or  duties  of  Dyer,  or  Russell,  or  any  one 
else,  growing  out  of  the  sale  of  the  right  of  redemption  upon 
Dyer's  second  execution,  which,  being  founded  upon  no  attach- 
ment, was  p7-ima  facie  a  nullity  as  to  Russell,  and  was  dependent 
for  its  effect  upon  the  evidence  that  might  be  offered,  showing 
Russell's  deed  void  as  to  creditors. 

The  present  case  stands  free  from  any  question  growing  out 
of  the  relation  of  landlord  and  tenant,  as  that  relation  is  not 
alleged,  and  the  lease  of  Russell  had  expired,  and  Dyer  had  never 
stood  in  that  relation.  The  evidence  otTered  that  Burnham's 
deed  to  Russell  was  fraudulent  as  to  his  creditors,  is  not  open 
to  any  objection  of  that  kind,  which  was  held  decisive  in  7  Foster. 
If  the  facts  warraiit  that  defense,  the  evidence  is  competent ;  and 
if  it  should  be  shown  that  the  deed  to  Russell  was  void  as  to 
creditors,  and  Dyer  was  one  of  that  class,  his  second  levy  was 
good,  if  i)roperly  made,  and  the  title  to  these  premises  passed  to 
him,  subject  to  his  prior  and  any  subsequent  levy,  and  to  Rus- 
sell's right  of  redemption. 

As  the  offer  of  the  defendant  to  prove  Burnham's  deed  to 
Russell  to  be  fraudulent  and  void  as  to  creditors,  and  as  to  the 
defendant.  Dyer,  as  one  of  them,  was  refused,  there  must  be  a 
new  trial. 


154  JOINT   ESTATES. 

CHAPTER     VIII. 

JOINT  ESTATES. 

Mette  V.  Feltgea,  148  111.  357;  30  N.  E.  81. 
Thornburs;  v.  Wisjiins,  135  Ind.  178;  34  N.  E.  999. 
Greenwood  v.  Marvin,  111  N.  Y.  423;   19  N.  E.  228. 

Burton  v.  Perry,  14G  111.  71 ;  34  N.  E.  60.  ,     , 

Joint  Tenancy  and  Tenancy  in  Common,  as  Modified  by 

Statute. 

Mette  «.  Feltgen,  148  III.  357;  36  N.  E.  81. 

On  rehearing.     For  former  opinion,  sec  27  N.  E.  911. 

Bailey,  J.  This  was  an  action  of  ejectment  brought  by 
Anna  M.  Feltgen  against  Henry,  August,  and  Louis  Mette  to 
recover  the  undivided  ono-half  of  lots  8  and  9  in  block  5  in 
Murray's  addition  to  South  Chicago.  The  defendants  pleaded 
not  guilty,  and  the  cause  being  tried  by  the  court,  a  jury  being 
waived,  it  was  found  that  the  plaintiff  was  the  owner  in  fee  of 
an  undivided  one-half  of  the  lots,  and  that  the  defendants  were 
guilty  of  unlawfully  withholding  possession  thereof  from  her. 
A  motion  by  the  defendants  for  a  new  trial  being  overruled, 
judgment  was  entered  that  the  plaintiff  recover  possession  of  the 
undivided  one-half  of  the  lots,  and  that  a  writ  of  possession 
issue  in  her  favor  therefor.  The  defendants  bring  the  record  to 
this  court  by  appeal. 

The  facts  are  all  admitted  by  stipulation,  and  are,  in  substance, 
as  follows :  On  the  23d  day  of  April,  1878,  Theodore  H.  Schintz, 
the  common  source  of  title  of  the  plaintiff  and  defendants,  exe- 
cuted and  delivered  to  Peter  Mayer  and  Atma  Mayer,  bis 
wife,  a  deed  which,  omitting  the  signature  and  certificate  of 
acknowledgment,  is  as  follows:  "This  indenture  witnesseth 
that  the  grantor,  Theodore  H.  Schintz,  a  bachelor,  of  the  city 
of  Chicago,  in  the  county  of  Cook  and  State  of  Illinois,  for  the 
consideration  of  one  dollar,  conveys  and  quitclaims  to  Peter 
Mayer  and  Anna  Mayer,  his  wife,  not  as  tenants  in  common,  but 
as  joint  tenants,  of  the  city  of  Chicago,  county  of  Cook  and 
State  of  Illinois,  all  interest  in  the  following  described  real 
estate,  to  wit,  lots  eight  and  nine  in  block  five  in  Murray's 
addition  to  South  Chicago,  situated  in  the  county  of  Cook  and 
State  of  Illinois,  hereby  releasing  and  waiving  all  right  under 
and  by  virtue  of  the  homestead  and  exemption  laws  of  this 
State.  Dated  this  twenty-third  day  of  April,  1878."  Anna 
Mayer,  one  of  the  grantees  in  the  deed,  died  intestate  April  4, 
1879,  leaving,  surviving  her,   her  husband  and  cograntee,  and 


JOINT   TENANCY    AND   TENANCY    IN    COMMON.  155 

also  leaving  the  plaintiff,  her  daughter  by  a  former  marriage  and 
her  only  heir  at  law,  who  was  then  a  minor  between  11  and  12 
years  of  age.  On  the  16th  day  of  February,  1882,  Peter  Mayer 
executed  a  deed  conveying  the  lots  to  August  Mette  and  Henry 
Mette,  and  on  the  same  day  the  plaintiff,  then  being  a  minor 
between  14  and  15  years  of  age,  executed  a  deed  by  which,  for 
an  exprssed  consideration  ot"  $50,  she  conveyed  and  quit-claimed 
to  August  and  Henry  Mette  all  her  interest  in  the  lots.  On  the 
11th  day  of  September,  1885,  the  plaintiff  attained  the  age  of  18 
years,  and  on  the  15th  day  of  June,  1888,  she  executed,  acknowl- 
edged, and  recorded  an  instrument  ex[)ressly  revoking,  annulling, 
and  declaring  void  her  deed  executed  during  her  infancy;  and 
July  13,  1888,  as  a  further  act  of  disuffiimance,  she  instituted 
this  suit,  and  shortly  tliereafter  commenced  a  suit  in  chancery 
to  set  the  deed  aside,  and  to  recover  her  interest  in  the  lots. 
August  and  Henry  Mette,  immediately  after  the  execution  of  the 
deed  to  them,  together  with  their  codefendant,  Louis  Mette, 
took  possession  of  the  lots,  and  excluded  the  plaintiff  therefrom, 
and  were  in  })osse>sion  thereof,  to  the  exclusion  of  the  plaintiff, 
at  the  time  of  the  commencement  of  this  suit,  and  are  still  in 
possession.  On  the  12lh  diy  of  January,  1884,  August  and 
Henry  Mette  executed  to  Louis  Mette  a  deed  by  which  they  con- 
veyed to  him  a  fractional  interest  in  the  lots. 

The  conveyance  by  the  plaintiff  to  August  and  Henry  Mette, 
made  during  her  minority,  having  l)een  expressly  revoked  and 
disaffirmed  by  her  after  becoming  of  age,  m;iy  be  disregarded, 
and  the  rights  of  the  parties  are  to  be  determined  precisely  as 
though  no  such  conveyance  had  been  made.  The  claims  of  the 
defendants  is  that  the  estate  of  Peter  Mayer  and  Anna  Mayer, 
his  wife,  in  the  lots,  was  a  joint  tenancy,  with  the  common-law 
incident  of  survivorship,  and  consequently  that,  upon  the  death 
of  Anna  Mayer,  Peter  Mayer,  by  right  of  survivorship,  became 
tenant  of  the  lots  in  severalty,  to  the  exclusion  of  the  heir  at 
law  of  Anna  Mayer,  and  that  Peter  Mayer's  conveyance  of  the 
lots  to  August  and  Henry  Mette  vested  in  them  the  entire  estate. 
The  plaintiff,  on  the  other  hand,  insists  that,  whether  the  deed 
from  Schintz  to  Peter  Mayer  and  wife  created  a  joint  tenancy  or 
not,  it  was,  under  our  statute,  a  tenancy  in  respect  to  which 
there  was  no  right  of  survivorship,  and  therefore  that  on  the 
death  of  Anna  Mayer  her  joint  interest  descended  to  and  be- 
came vested  in  the  plaintilF,  as  her  sole  heir  at  law.  There  can 
be  no  doubt  that  the  parties  in  the  Schintz  deed  intended  thereby, 
to  create  an  estate  in  joint  tenancy,  and  not  a  tenancy  in  common  ; 
and  it  must  be  admitted,  we  think,  that  the  language  employed 
was  apt  and  sufficient  for  the  accomplishment  of  that  purpose.    It 


156  JOINT    ESTATES. 

only  remains  to  be  determined  whether,  under  our  statute,  the 
right  of  [survivorship  can  still  be  regarded  as  an  incident  of  an 
estate  in  joint  tenancy.  Tiie  doul)t  on  this  question  grows  out 
of  the  a[)parcnt  conllict  between  section  5,  c.  30,  of  the  Revised 
Statutes,  entitled  "  Conveyances,"  and  section  1,  c.  76,  entitled 
"Joint  Rights  and  Obligations."  These  statutes  are  in  pari 
materia,  and  are  to  be  construed  together,  and  very  much  aid 
ill  such  construction  may  be  obtained  by  examining  their  history, 
as  a  part  of  the  legislation  of  the  State.  On  the  15th  day  of 
January,  1821,  the  general  assembly  passed  '*  An  act  concerning 
partitions  and  joint  rights  and  obligations,"  the  first  and  second 
sections  of  which  were  as  follows  :  "  Section  1.  Be  it  enacted," 
etc.,  "  that  all  joint  tenants  or  tenants  in  common  who  now  are, 
or  hereafter  shall  be,  possessed  of  any  estate  of  inheritance,  or 
estate  less  than  those  of  inheritance,  either  in  their  own  right  or 
in  the  right  of  their  wives,  may  be  compelled  to  make  partitions 
between  them  of  such  lands,  tenements  or  hereditaments  as  they 
now  hold  or  hereafter  shall  hold,  as  joint  tenants,  or  tenants  in 
common.  Provided,  however,  that  no  such  partition,  between 
joint  tenants  or  tenants  in  common,  who  hold  or  shall  hold  estate 
for  life  or  years,  with  others  holding  equal  or  greater  estates, 
shall  prejudice  any  entitled  to  tiie  revision  or  remainder,  after 
the  death  of  the  tenants  for  life,  or  after  the  expiration  of  the 
years.  Sec.  2.  That  if  partition  l)e  not  made  between  joint  ten- 
ants, the  parts  of  those  who  die  first  shall  not  accrue  to  the  sur- 
vivor or  survivors,  but  descend  or  pass  by  devise,  and  shall  be 
subject  to  debts,  dower,  charges,  etc.,  or  transmissible  to  execu- 
tors or  administrators,  and  be  considereil  to  every  intent  and 
purpose,  in  the  same  view  as  if  such  deceased  joint  tenants  had 
been  tenants  in  common."  Afterwards,  on  January  31,  1827, 
the  general  assembly  passed  "  An  act  concerning  conveyances  of 
real  property,"  the  fifth  section  of  which  was  as  follows:  "No 
estate  in  joint  tenancy,  in  any  lands,  tenements,  or  heredita- 
ments, shall  be  held  or  claimed  under  any  grant,  devise  or  con- 
veyance whatever,  heretofore  or  hereafter  made,  other  than  to 
executors  and  trustees,  unless  the  premises  therein  mentioned 
shall  expressly  be  thereby  declared  to  pass,  not  in  tenancy  in 
common,  but  in  joint  tenancy;  and  every  such  estate,  other  than 
to  executors  or  trustees  (unless  otherwise  expressly  declared  as 
aforesaid),  shall  be  deemed  to  be  a  tenancy  in  common."  In  the 
Revised  Statutes  of  1845,  section  2  of  the  act  of  1821  appears  as 
section  1  of  chapter  56,  entitled  "  Joint  Rights  and  Obligations," 
while  section  5  of  the  act  of  1827  appears  as  section  5  of  chap- 
ter 24,  entitled  "  Conveyances,"  both  chapters  having  been 
approved    on    the    same    day.      In    the    Revised   Statutes   of 


JOINT    TENANCY    AND    TENANCY    IN    COMMON.  157 

1874,  section  2  of  the  Act  of  1821  again  appears  as  section  1  of 
"  An  Act  to  revise  the  law  in  relation  to  joint  rights  and  obliga'- 
tioiis,"  approved  February  25,  1874,  and  section  5  of  the  Act 
of  1827  appears  as  section  5  of  the  "  Act  concerning  convey- 
ances," approved  March  20,  1872,  and  in  force  July  1,  1872. 
Both  sections  have  now  been  on  the  statute  books  concurrently 
since  1827,  and  both,  since  their  original  enactment,  have  been 
twice  included,  without  change  of  phraseology,  in  general  revis- 
ions of  the  statutes. 

It  seems  plain  that  the  Act  of  1821  undertook  to  deal  only 
with  joint  tenancies  and  tenancies  in  common  held  by  the  tenants 
in  their  own  rights,  or  in  right  of  their  wives.  Such  is  the 
express  limitation  contained  in  the  language  of  section  1,  and 
that  limitation  undoubtedly  was  intended  to  apply  to  and  control 
the  entire  Act.  No  other  tenancies  were  within  the  legislative  con- 
templation. The  Act,  therefore, had  no  application  to  estates  held 
by  executors,  trustees,  or  others  holding  estates  en  autre  droit. 
But  as  to  estates  held  by  the  tenants  in  their  own  rights,  or  in 
right  of  their  wives,  whether  held  as  joint  tenants  or  tenants 
in  common,  the  Act  gave  the  right  to  compel  partition,  and  in 
cases  of  joint  tenants,  if  partition  was  not  made,  the  right  of 
survivor  was  taken  away  ;  and  it  was  provided  that  the 
part  of  the  tenant  dying  first  should  pass  by  descent  or  devise, 
and  be  subject  to  debts,  dower  charges,  etc.,  and  be  transmis- 
sible to  executors  or  administrators,  and  be  considered,  to  every 
intent  and  purpose,  in  the  same  view  as  if  the  deceased  joint 
tenant  had  been  a  tenant  in  common.  The  effect  of  this  statute, 
clearly,  was  to  practically  abolish  joint  tenancies,  where  the 
estates  were  held  by  the  tenants  in  their  own  rights  or  in  right 
of  their  wives,  or,  that  which  is  the  same  thing,  to  convert  them 
into  tenancies  in  common.  The  right  of  survivorship,  which  is 
and  always  has  been  the  principal  and  distinguishing  incident  of 
joint  tenancies,  was  taken  away;  and  upon  the  death  of  the  ten- 
ant, without  having  made  partition,  the  estate  was  to  be  treated 
and  considered,  to  every  intent  and  purpose,  as  a  tenancy  in 
common. 

The  Act  of  1827  made  no  reference  to  that  of  1821,  but,  as  it 
was  the  later  expression  of  the  legislative  will,  it  had  the  effect 
of  repealing  or  modifying  the  former  act,  in  so  far  as  it  was 
inconsistetit  therewith.  It  becomes  important,  then,  in  the  first 
place,  to  determine  the  proper  interpretation  to  be  placed  upon 
that  Act,  standing  by  itself.  In  using  without  explanation  or 
qualification  the  terms  "joint  tenancy  "  and  '*  tenancy  in  com- 
mon,"—  terms  having,  at  common  law,  a  fixed  and  well  under- 
stood meaning,  —  it  was  doubtless  intended  to  use  them  in  their 


158  JOINT    ESTATES. 

ordinary  common-law  sense.  Its  effect  was  to  restore  the  right 
to  create  estates  in  joint  tenancy,  as  known  at  common  law, 
in  so  far  as  that  right  was  al)rogate(l  l)y  the  act  of  1821, 
rather  by  tacit  recognition  than  by  express  words,  and  then 
undertook  to  change  the  rule  of  presumptions  obtaining  at 
common  law  where  a  conveyance  of  land  was  made  to  two  or 
more  persons.  Wheie  an  estate  was  conveyed  to  a  plurality 
of  persons  without  adding  any  restrictive,  exclusive,  or  explan- 
atory words,  such  conveyance,  at  common  law,  was  held  to  con- 
stitute thegrantees  joint  tenants,  and  not  tenants  in  common;  it 
being  necessary,  in  order  to  create  a  tenancy  in  common  by 
deed,  to  add  exclusive  or  explanatory  words,  so  as  to  expressly 
limit  the  estate  to  the  grantees,  to  hold  as  tenants  in  common 
and  not  as  joint  tenants.  2  Bl,  Comm.  180,  193.  By  section 
5  of  the  act  of  1827,  this  rule,  except  in  cases  of  conveyances  to 
executors  or  trustees,  was  precisely  reversed.  Under  that 
section,  a  conveyance  to  two  or  more  persons,  without  restrict- 
ive or  explanatory  words,  created  a  tenancy  in  common;  and, 
in  order  to  create  a  joint  tenancy,  the  estate  had  to  be  expressly 
declared  to  pass,  not  in  tenancy  in  common,  but  in  joint 
tenancy.  If  the  question  had  arisen  at  any  time  after  the  pass- 
age of  the  act  of  1829,  and  prior  to  the  Revision  of  1845,  it 
would  have  presented  no  material  difficulty.  The  rule  estab- 
lished by  the  act  of  1827  would  have  been  held  to  prevail, 
that  being  the  latest  act ;  and  as  that  act  clearly  recog- 
nized the  existence  of  estates  in  joint  tenancy,  a  well- 
known  species  of  common  law  estate,  and  expressly  pro- 
vided the  mode  in  which  they  might  be  created,  the  result 
would  have  logically  followed,  that  joint  estates  created  in  the 
manner  prescribed  were  joint  tenancies,  in  the  common-law 
sense,  and  possessing  the  qualities  and  incidents  which  the  com- 
mon law  attaches  to  them,  notwithstanding  the  provisions  of  the 
act  of  1821  to  the  contrary.  The  view  that  the  estate  in  joint 
tenancy  referred  to  in  the  act  of  1827  was  the  common-law 
estate,  with  its  common-law  incidents,  is  strengthened  by  refer- 
ence to  the  piovisions  of  the  act  in  relation  to  the  tenancy 
when  vested  in  executors  or  trustees.  As  we  have  already  seen, 
tenancies  of  that  character  are  not  within  the  purview  of  the 
act  of  1821,  nor  affected  by  its  provisions.  They  were  doubtless 
excluded  from  the  operation  of  that  act,  on  account  of  the  mani- 
fest impropriety  of  compelling  partition  between  joint  tenants 
holding  in  a  trust  capacity,  and  the  obvious  advantages  result- 
ing from  an  application  of  the  rule  of  survivorship  to  joint 
tenants  of  that  character.  The  act  of  1827  also  expressly 
excepts  from  its  operation  executors  and  trustees,  thus  keeping 


JOINT  TENANCY  AND  TENANCY  IN  COMMON.         159 

in  force,  as  to  them,  the  common-law  rule,  but  provides  that  in 
other  cases,  to  create  a  joint  tenancy,  it  must  be  expressly  de- 
clared in  the  deed  to  be  such,  and  not  a  tenancy  in  common. 
But  there  is  nothing  in  the  act  of  1827  furnishing  the  least  indi- 
cation that  the  legislature  intended  to  attach  to  joint  tenancies, 
where  the  tenants  held  in  their  own  right,  any  other  or  different 
incidents  than  those  which  properly  belonged  to  the  estate 
where  executors  or  trustees  were  the  tenants.  It  is  beyond 
question  that,  in  the  latter  class  of  joint  tenancies,  it  was  the 
intention  of  the  act  that  the  incident  of  survivorship  should  pre- 
vail;  and  as  the  act  furnishes  no  evidence  to  the  contrary,  it 
would  seem  to  be  equally  clear  that  the  same  rule  was  intended 
to  apply  to  those  where  the  tenants  were  such  in  their  own 
right. 

Up  to  the  passage  of  the  Revised  Statutes  of  1845,  the  law  on 
the  subject,  so  tar  as  it  was  declared  by  statute,  was  to  be  found 
in  the  act  of  1821,  as  modified  by  the  act  of  1827,  the  latter  act 
prevailing,  and  furnishing  the  rule  in  all  matters  where  the  two 
were  inconsistent  with  each  other.  It  would  seem,  therefore, 
that  the  re-enactment  of  these  two  statutes,  without  change  of 
phraseology,  in  the  revision  of  1845,  and  again  in  the  revision 
of  1874,  was  intended  as  a  readoption  of  the  statutory  law  on 
the  subject  in  precisely  the  condition  in  which  it  was  before  any 
revision  was  made.  It  has  been  held,  and  we  think  correctly, 
that,  where  there  are  repugnant  provisions  in  a  revised  code, 
those  portions  which  are  transcribed  from  later  statutes  must  be 
deemed  to  repeal  sections  adopted  earlier,  or  transcribed  from 
earlier  statutes,  or  to  so  modify  them  as  to  produce  agreement 
between  such  repugnant  provisions.  End.  Interp.  St.,  §  183.  In 
Ex  })arte  Ray,  45  Ala.  15,  a  revised  code  had  been  enacted  em- 
bracing various  prior  statutes  enacted  at  different  times,  and,  in 
giving  construction  to  a  particular  portion  of  such  code,  it  was 
said:  "  All  the  several  sections  on  the  same  subject  should  be 
construed  together.  By  being  embraced  in  the  code,  they  are 
formed  into  a  system  on  the  subject  to  which  they  refer,  and  by 
the  adoption  of  the  code  the  legislature  has,  as  it  were,  laid  its 
hands  on  them,  and  given  them  new  life  and  vitality,  as  a  body. 
For  this  reason,  if  for  no  other,  they  should  be  interpreted  and 
construed  together,  and,  if  possible,  made  consistent,  and  in  har- 
mony with  each  other.  If,  however,  this,  in  any  pirticular  ca^e, 
cannot  be  done,  then  the  earlier  sections,  or  sections  taken  from 
earlier  acts,  must  be  held  to  be  repealed,  or  so  modified  as  to  be 
in  agreement  with  the  later  sections."  See,  also,  O'Neal  v.  Rob- 
inson, 45  Ala.  526;  State  v.  Heidorn,  74  Mo.  410.  Section  2, 
c.   131,  of  the  Revised  Statutes  of  1874,  is  as  follows:    "The 


160  JOINT    ESTATES. 

provisions  of  any  statute,  so  far  as  they  are  the  same  as  those  of 
any  prior  statute,  shall  be  construed  as  a  continuation  of  such 
prior  provisions,  and  not  as  a  new  enactment."  As  applicable 
to  our  present  Revised  Statutes,  this  section  furnishes  a  rule  of 
construction.  Under  it,  as  it  would  seem,  a  statute  gains  no 
additional  force  by  being  included  in  a  revision,  but  is  only 
continued  as  a  part  of  our  statutory  law,  having  the  same  force 
and  effect  as  before.  Under  this  rule,  the  fact  that  one  of  the 
statutes  now  under  consideration  was  re-enacted  more  recently 
than  the  other  in  the  revision  of  1874  is  immaterial,  as  in  both 
cases  an  old  statute  was  continued  in  force,  and  no  new  one  en- 
acted. Under  these  circumstances,  we  are  disposed  to  hold  that 
the  two  statutes  under  consideration  still  sustain  to  each  other 
the  same  relations  which  existed  prior  to  the  revision  of  1845, 
and  that  they  should  be  construed  now  the  same  as  they  would 
have  been  construed  prior  to  that  revision.  As  a  consequence, 
the  act  of  1827  must  still  be  regarded  as  repealing  or  modifying 
the  act  of  1821,  to  the  extent  of  permitting  parties  to  create  the 
common-law  estate  of  joint  tenancy,  with  its  common-law  inci- 
dents, by  expressly  declaring  in  a  deed  running  to  two  or  more 
grantees,  that  the  estate  conveyed  shall  pass,  not  in  tenancy  in 
common,  but  in  joint  tenancy. 

Applying  these  conclusions  to  the  case  before  us,  it  follows 
that  upon  the  death  of  Anna  Mayer,  intestate,  her  share  passed 
to  her  husband  by  right  of  survivorship,  and  that  he  thereby 
became  vested  with  the  entire  estate  as  tenant  in  severalty.  It 
follows  that  no  estate  or  interest  in  the  land  passed  by  inherit- 
ance to  Anna  M.  Feltgen,  the  plaintiff,  on  the  death  of  her 
mother,  but  that  the  conveyance  from  Peter  Mayer  to  the  de- 
fendants vested  in  them  the  entire  estate.  The  plaintiff  having 
failed  to  establish  any  interest  in  the  land,  the  judgment  in 
her  favor  is  erroneous.  It  will  therefore  be  reversed,  and  the 
cause  will  be  remanded  to  the  superior  cdurt.  Judgment 
reversed . 

Mageuder,  J.  Of  the  two  sections  of  the  statute  under  con- 
sideration in  this  case,  that  adopted  in  1821  is  now  in  force  as 
section  1  of  the  act  in  regard  to  joint  rights  and  obligations, 
and  that  adopted  in  1827  is  now  in  force  as  section  5  of  the  con- 
veyance act.  The  readoption  of  these  two  sections  by  the  legis- 
lature, at  several  different  times  since  their  original  passage,  indi- 
cates an  intention  on  the  part  of  the  lawmaking  power  that  they 
should  both  stand  together,  and  that  the  one  should  not  operate 
as  a  repeal  of  the  other.  There  is  no  necessary  conflict  between 
them.  They  can  be  so  construed  as  to  harmonize  with  each 
other.     Section  1   refers  to   both  personal    and  real    property. 


JOINT   TENANCY    AND    TENANCY   IN    COMMON.  161 

Section  5  refers  to  real  properly  alone.  Section  1  standing  hy 
itself,  is  broad  enough  to  abolish  the  right  of  survivorship,  as 
between  joint  tenants,  an(l  to  convert  the  estate  of  joint  tenancy 
into  an  estate  of  tenancy  in  common.  But  section  5  was  evi- 
dently intended  to  be  a  qualification  of  the  broad  rule  laid  down 
in  section  1,  so  far  as  lands,  tenements,  and  hereditaments 
are  concerned,  and  was  designed  to  limit  the  application 
of  the  rule  to  cases  where  the  grant,  devise,  or  convey- 
ance did  not,  in  express  terms,  create  an  estate  of  joint  ten- 
ancy. Section  5  is  merely  a  recognition  of  the  rule  that  the 
law  will  etfectuate  the  intentions  of  parties,  where  such  inten- 
tion is  clearly  manifest,  whether  in  wills,  deeds,  or  contracts. 
It  is  a  mistake  to  suppose  that  the  estate  of  joint  tenancy  has 
been  prohibited  by  our  statute.  The  creation  of  such  an  estate 
is  not  forbidden.  It  does  not  exist  by  operation  of  law,  but  it 
may  exist  by  the  express  declaration  of  the  parties.  No  other 
construction  could  be  given  to  the  language  of  section  5.  By 
the  terms  of  that  section,  an  estate  in  joint  tenancy  may  be  held 
in  lands  under  a  conveyance,  where  the  premises  mentioned  in 
the  conveyance  are  thereby  expressly  "  declared  to  pass,  not  in 
tenancy  in  common,  but  in  joint  tenancy."  Joint  tenancy  shall 
be  deemed  to  be  tenancy  in  common,"  unless  otherwise  expressly 
declared,"  except,  of  couise,  where  the  grant  or  devise  is  to 
executors  and  trustees.  The  law  will  construe  the  estate  to  be 
a  tenancy  in  common,  and  not  a  joint  tenancy,  where  no  con- 
trary intention  is  expressly  declared  in  the  instrument;  but 
where  the  instrument  expressly  declares  that  the  land  shall  pass, 
not  in  tenancy  in  common,  but  in  joint  tenancy,  the  law  will 
permit  the  estate  in  joint  tenancy  to  exist.  It  will  not  do  to 
say  that  section  1  abolished  the  right  of  survivorship,  and  that 
section  5  merely  permitted  a  joint  tenancy  without  the  right  of 
survivor-hip  to  be  created  by  an  express  declaration  in  the  devise, 
grant  or  conveyance.  The  doctrine  of  survivorship,  or  Jus  accres- 
cendi,  is  the  distinguishing  incident  of  title  by  joint  tenancy  ;  and 
therefore,  at  common  law,  the  entire  tenancy  or  estate,  upon  the 
death  of  any  of  the  joint  tenants,  went  to  the  survivors."  4  Kent 
Coram.  360.  It  can  hardly  be  presumed  that  the  legislature,  in 
authorizing  an  estate  by  joint  tenancy  to  be  created  by  an 
exi)re8s  declaration  in  the  grant  or  devise,  referred  to  those 
technical  joint  tenancies  arising  from  the  unities  of  time,  title, 
interest,  and  possession.  If  such  a  construction  of  section  5  is 
to  prevail,  then  no  right  of  survivorship  was  reserved  to  exec- 
utors and  trustees  by  that  section.  In  both  sections  1  and  5, 
joint  tenancy  is  spoken  of  as  the  antithesis  of  tenancy  in  com- 
mon;  and  the  distinguishing  feature  of  the  latter  is  that  a  tenant 

U 


162  JOINT    ESTATES. 

In  common  is,  as  to  his  own  undividod  share,  j)recisel3^  in  the 
position  of  the  owner  of  an  entire  and  sej^arate  estate.  In 
Kent's  Commentaries  we  find  the  foWowinjj::  "  In  New 
York,  *  *  *  estates  in  joint  tenancy  were  abolished,  ex- 
cept in  executors  and  other  trustees,  unless  the  estate  was 
expressly  declared,  in  the  deed  or  will  creating  it,  to  pass  in 
joint  tenancy.  *  *  *  Ji^  ^h^  Stales  of  Maine,  *  *  * 
lllinoi>^,  and  Delaware,  joint  tenancy  is  placed  under  the  same 
restrictions  as  in  New  York,  and  it  cannot  he  created  but  by 
express  words  ;  and,  when  lawfully  created,  it  is  presumed  that 
the  common  law  incidents  belonginij^  to  that  tenancy  follow." 
4  Kent  Comm.  361,  362.  It  follows  that  the  estate  in 
joint  tenancy,  which  may  be  expressly  declared  to  exist  by 
section  5,  includes  the  right  of  survivorship  as  one  of  its 
common  law  incidents.  In  Arnold  v.  Jack's  Ex'rs,  24  Pa.  St. 
57,  the  Supreme  Court  of  Pennsylvania,  in  commenting  upon  a 
statute  of  that  State  whose  laniiuao:e  is  the  same  as  that  of  said 
section  1,  say:  *'  It  is  a  question  worthy  of  consideration 
whether  the  provisions  of  the  act  *  *  *  apply  to  a  joint 
tenancy  created  by  express  words  in  a  devise."  That  is  to  say, 
it  is  a  question  worthy  of  consideration  whether  the  provisions 
of  section  1  would  apply  where  the  joint  tenancy  was  created  by 
express  words  in  the  grant  or  devise,  even  if  that  section  had 
stood  alone,  and  section  5  had  never  been  enacted.  In  com- 
menting upon  the  legislation  in  reference  to  joint  tenancy, 
Pomeroy,  in  his  work  on  Equity  Jurisprudence,  sa3^s:  "This 
legislation,  throughout  all  the  States,  has  declared  that  a  convey- 
ance of  land  to  two  or  more  grantees  shall,  unless  a  contrary 
intention  is  clearly  expressed,  create  an  ownership  in  common, 
and  not  a  joint  ownership."  1  Pom.  Eq.  Jur.,  §  408,  In  Stimp- 
son  V.  Batterman,  5  Cush.  153,  the  devise  was  to  the  "  children 
and  survivor  or  survivors  of  them;  "  and  it  was  held  that  these 
were  apt  words  to  create  an  estate  of  joint  tenancy,  and  that  the 
children  took  as  joint  tenants.  In  Mittel  v.  Karl,  153111.  65  ;  24 
N.  E.  553,  it  was  held  that  a  deed  to  a  man  and  his  wife,  and 
*' the  survivor  of  them,  in  his  or  her  own  right,"  gave  to  the 
grantee  dying  first  an  estate  for  life,  with  remainder  in  fee  to  the 
survivor.  What  is  the  substantial  difference  between  deeding 
or  devising  land  to  two  persons,  and  the  survivor  of  them,  and 
deeding  or  devising  land  to  two  persons  to  he  held  in  joint  ten- 
ancy? The  distinguishing  feature  of  joint  tenancy  is  the  right 
of  the  survivor  to  take  the  whole  estate.  If  the  statute  does 
not  prohibit  the  conveyance  or  devise  of  land  to  two  persons, 
and  the  survivor  of  them,  so  as  to  give  the  survivor  the  right  to 
take  the  whole  estate,  it  is  difficult  to  see  why  the  statute  should 


TENANCY    IN    ENTIRETY.  163 

be  construed  as  prohibitinir:  land  from  being  held  in  joint  len- 
aDcy,  so  far  as  the  right  of  the  survivorship  is  involved  in  the 
joint  tenancy,  if  the  deed  or  devise  expressly  declares  that  such 
land  shall  be  held  in  joint  tenancy,  and  not  in  tenancy  in  com- 
mon. Evidently,  the  statute  does  not  prevent  paities  from  con- 
veying or  devising  their  lands  so  as  to  enforce  the  right  of  sur- 
vivorship, provided  they  indicate  their  intentions  by  clear  and 
express  declarations  in  the  deed  or  will.  The  question  here  dis- 
cussed has  never  before  been  fully  and  fairly  presented  to  this 
court,  as  arising  directly  out  of  the  facts  involved.  If,  in  any 
decisions  heretofore  made,  expressions  have  been  made  use  of 
which  are  seemingly  at  variance  with  these  views,  such  expres- 
sions cannot  be  regarded  otherwise  than  as  mere  dicta.  It  fol- 
lows from  what  has  been  said  that  the  deed  from  Schintz  to 
Peter  Mayer  and  Anna  Mayer  so  far  conveyed  to  them  an  estate 
in  joint  tenancy  as  that  Peter  Mayer,  the  survivor,  took  the 
whole  title  in  fee  to  the  lots,  after  the  death  of  his  wife.  There- 
fore, the  judgment  below  should  have  been  for  the  defendants. 


Tenancy  in  Entirety. 

Thornburg  v.  Wiggins,  135  Ind.  178;   34  N,  E.  999. 

Dailey,  J.  This  was  an  action  instituted  in  the  court  belowr, 
in  two  paragraphs,  in  the  first  of  which  appellees  allege,  in 
substance,  that  on  and  before  December  15,  1884,  one  Lemuel 
Wiggins  was  the  owner  of  a  certain  tract  of  real  estate  therein 
described,  containing  eighty  acres;  that  on  said  day  said 
Lemuel  and  his  wife,  Mary,  executed  and  delivered  to  the  appel- 
lees a  warianty  deed,  conveying  to  them  the  fee  simple  of  said 
real  estate ;  that  at  the  time  of  said  conveyance  the  appellees 
were,  ever  since  have  been,  and  now  are,  husband  and  wife; 
that  said  deed  convej^ed  to  the  af)pellees  the  title  to  said  real 
estate  which  they  took  and  accepted,  ever  since  have  held,  and 
now  hold  by  entireties  and  not  otherwise;  that  appellees  hold 
their  title  to  said  real  estate  by  said  deed  of  Lemuel  Wiggins, 
and  not  otherwise;  that  on  the  24th  "  day  of  April,  1877,  Isaac 
R.  Howard  and  Isaac  N.  Gaston,  who  were  defendants  below, 
recovered  a  judgment  in  the  Randolph  circuit  court  for  the  sura 
of  $403.70  and  costs,  against  one  John  T.  Burroughs  and  the 
appellee,  Daniel  S.  Wiggins,  as  partners,  doing  bnsipess  under 
the  firm  name  of  Burroughs  &  Wiggins  ;  that  on  May  12,  1886, 
said  Howard  and  Gaston  caused  an  execution  to  be  issued  on 
said  judgment  and  placed  in  the  hands  of  the  appellant,  Thorn- 
burg, as  sheriff  of  said  county,  and  directed  him  to  levy  the 


164  JOINT    KSTATFS. 

same  <in  s:iid  real  estate,  and  that  said  shoritT  did,  on  the  25th 
day  of  M:ty,  1886,  levy  said  execution  on  said  real  estate,  or  on 
the  one-half  interest  in  value  thereof,  taken  as  property  of  said 
appclianl,  Daniel  S.  Wiggins,  to  satisfy  said  writ;  that  pursu- 
ant to  the  levy  thereof  sai<i  sheriff  [)roceeded  by  the  diiection  of 
said  Howard  and  Gaston  to  advertise  said  real  estate  for  sale 
under  said  execution  and  levy  to  make  said  debt,  and  did,  on  the 
8th  day  of  June,  advertise  the  same  for  sale  on  the  3(1  day  of 
July,  1886,  and  will,  on  said  day,  sell  the  same,  unless  re- 
strained and  enjoined  from  so  doing  by  the  court  ;  that  said 
Daniel  S.  Wiggins  has  no  interest  in  said  premises,  subject  to 
sale  thereon  ;  that  the  appellees  hold  the  title  thereto  as  tenants 
by  entireties,  and  not  otherwise;  that  the  sale  of  said  tract  on 
said  execution  would  cast  a  cloud   on  the  ap[>ellee's  title,"  etc. 

The  second  paragraph  is  the  same  as  the  first,  in  substantial 
averments,  except  that  in  this  paragiaph  the  appellees  set  out 
as  a  part  thereof  a  copy  of  the  deed  under  which  they  claim 
title  to  said  real  estate  as  such  tenants  by  entireties. 

The  granting  clause  of  the  deed  is  as  follows:  "This  inden- 
ture witnesseth,  that  Lemuel  Wiggins  and  Mary  Wiggins,  his 
wife,  of  Randolph  County,  in  the  Slate  of  Indiana,  convey  and 
warrant  to  Daniel  S.  Wiggins  and  Laura  Belle  Wiggins,  his  wife, 
in  joint  tenancy,"  etc. 

Appellants  separately  and  severally  demurred  to  each  para- 
graph of  the  complaint,  and  their  demurrers  were  overruled  by 
the  court,  to  which  the  appellants  excepted,  and  refusing  to 
answer  the  complaint,  judgment  was  rendered  in  favor  of  appel- 
lees on  said  demurrers. 

Appellants  appeal,  assigning  as  errors  the  overruling  of  said 
demurrers,  and  urge  that  the  appellees  under  the  deed  took  as 
joint  tenants,  and  hence  that  the  husband's  interest  is  subject  to 
levy  and  sale  upon  execution.  A  joint  tenancy  is  an  estate  held 
by  two  or  more  persons  jointly,  so  that  during  the  lives  of  all 
they  are  equally  entitled  to  the  enjoyment  of  the  land,  or  its 
equivalent  in  rents  and  profits,  but,  upon  the  death  of  one  his 
share  vests  in  the  survivor  or  survivors  until  there  be  but  one 
survivor,  when  the  estate  becomes  one  in  severalty  in  him  and 
descends  to  his  heirs  upon  his  death.  It  must  always  arise  by 
purchase,  and  cannot  be  created  by  descent.  Such  estates  may 
be  created  in  fee,  for  life,  for  years,  or  even  in  remainder.  But 
the  estate  held  by  each  tenant  must  be  alike.  Joint  tenancy  may 
be  destroyed  by  anything  which  destroys  the  unity  of  title. 
Our  law  aims  to  prevent  their  creation  and  they  cannot  arise, 
except  by  the  instrument  providing  for  such  tenancy.  Griffin  v. 
Lynch,  16  Ind.  396. 


TENANCY    IN    ENTIRETY.  165 

The  9th  Am.  and  Eng.  Eiicy.  of  Law,  850,  says:  <'  Husband 
and  wife  are,  at  comtiion  law,  one  person,  so  that  when  realty  or 
peisonalty  vests  in  them  both  equally  *  *  *  they  take  as  one 
person,  they  take  but  one  estate  as  a  corporation  would  take. 
In  the  case  of  realty,  they  are  seibcd  not^er  my  et  per  iout^  as 
joint  tenants  aie,  but  simi)ly^>pr  toul ;  both  are  seised  of  the 
whole,  and  each  being  seised  of  the  entirety,  they  are  called 
tenants  by  the  entirety,  and  thci  estate  is  an  estate  by  entiie- 
ties.  *  *  *  Estates  by  entireties  may  be  created  by  will,  by 
instrument  of  gift  or  [)urcha8e,  and  even  by  inheritance.  Each 
tenant  is  seised  of  the  whole,  the  estate  is  insoperable  —  cannot 
be  partitioned;  neither  husband  nor  wife  can  alone  affect  the 
inheritance,  the  survivor's  right  to  the  whole." 

This  tenancy  has  been  spoken  of  as  "  that  peculiar  estate 
which  arises  upon  the  conveyance  of  lands  to  two  persons  who 
are,  at  the  time,  husband  and  wife,  commonly  called  estates  by 
entirety."  As  to  the  general  features  of  estates  by  entireties 
there  is  little  room  for  controversy,  and  there  is  none  between 
counsel.  Our  statute  re-enacts  the  common  law.  Arnold  v, 
Arnohl,  30  Ind.  305;   David  v.  Clark,  26  Ind.  424. 

Strictly  speaking,  estates  by  entireties  are  not  joint  tenancies. 
Chandler  v.  Cheney,  37  Ind.  391;  Hulett  v.  Inlow,  57  Ind.  412. 
The  husband  and  wife  being  seised  not  of  moieties,  but  both 
seised  of  the  entirety  per  tout  and  not  per  my.  Jones  v.  Chand- 
ler, 40  Ind.  588;  Davis  v.  Clark,  supra;  Arnold  v.  Arnold, 
supra. 

Jt  has  been  said  by  this  court  in  some  of  the  earlier  decisions 
that  no  particular  words  are  necessary.  A  conveyance  which 
would  make  two  persons  joint  tenants  will  make  a  husband  and 
wife  tenants  by  the  entirety.  It  is  not  even  necessary  that  they 
be  described  as  such  or  their  material  relation  referred  to.  Mor- 
rison V.  Seybold,  92  Ind.  298  ;  Hadlock  v.  Gray,  104  Ind.  596; 
Dodge  V.  Kiuzy,  101  Ind.  102  ;  Hulett  v.  Inlow,  supra;  Chand- 
ler V.  Cheney,  supra. 

But  the  court  has  said  that  the  general  rule  may  be  defeated 
by  the  expression  of  conditions,  limitations,  and  stipulations, 
in  the  conveyance,  which  clearly  indicate  the  creation  of  a 
different  estate.  Hadlock  v.  Gray,  supra;  Edwards  v.  Beall,  75 
Ind.  401. 

Having  its  origin  in  the  fiction  or  common-law  unity  of 
husband  and  wife,  the  courts  of  some  States  have  held  that 
mariied  women's  acts,  extending  their  rights,  destroyed  estates 
by  entirety,  but  this  court  holds  otherwise.  Carver  v.  Smith,  90 
Ind.  222. 

And  the  greater    weight    of  authority   is    in  its  favor.     Our 


166  JOINT     ESTATES. 

decisions  hold  that  neither,  alone,  can  alienate  such  estate.  Jones 
V.  Chandler,  supra;  Morrison  v.  Seyl)old,  snjjra. 

There  can  be  no  partition.     Chandler  v.  Cheney,  supra, 

A  mortgage  executed  by  the  husband  alone  is  void.  Jones  v. 
Chandler,  supra. 

And  the  same  is  true  of  a  mortgage  executed  by  both  to  secure 
a  debt  of  the  husband.     Dodge  v.  Kinzy,  supra. 

And  the  wife  cannot  validate  it  by  agreement  with  the  pur- 
chaser to  indemnify  in  case  of  loss  arising  on  account  of  it. 
•State  ex  rel.  v.  Kennett,  114  Ind.   160. 

A  judgment  against  one  of  them  is  no  lion  upon  it.  Barren 
Creek  Ditching  Co.  v.  Beck,  99  Ind.  247  ;  McConnell  v.  Martin, 
52  Ind.  434  ;  Othwein  v.  Thomas,  13  N.  E.  Rep.  564. 

Upon  the  death  of  one,  the  survivor  takes  the  whole  in  fee. 
Arnold  V.  Arnold,  supra. 

The  deceased  leaves  no  estate  to  pay  debts.  Simpson  v.  Pear- 
son, Admr.,  31  Ind.  1. 

And,  during  their  joint  lives,  there  can  be  no  sale  of  any  part 
on  execution  against  either.  Carver  v.  Smith,  supra;  Dodge  v. 
Kinzy,  supra;  Hulett  v,  Inlovv,  supra;  Chandler  v.  Cheney, 
supra;  Davis  v.  Clark,  supra;  McConnell  v.  Martin,  supra  ;  Cox's 
Admr.  V.  Wood,  20  Ind  54. 

The  statutes  extending  the  rights  of  married  women  have 
no  effect  whatever  upon  estates  by  entirety.  Carver  v.  Smith, 
supra. 

Such  estate  is,  in  no  sense,  either  the  husband's  or  the  wife's 
separate  property.  The  husband  may  make  a  valid  conveyance 
of  his  interest  to  his  wife,  because  it  is  with  her  consent. 
Enyeart  v.  Kepler,  118  Ind.   34. 

The  rule  that  husband  and  wife  take  by  entireties  was  enacted 
in  this  territory  in  1807,  nine  years  before  Indiana  was  vested 
with  Statehood,  and  has  been  repeated  in  each  succeeding  revis- 
ion of  Our  statutes.  It  has  thus  been  the  law  of  real  property, 
with  us,  for  eighty-six  years. 

Section  2922,  R.  S.  1882,  provides  that  "  All  conveyances  and 
devises  of  lands,  or  of  any  interest  therein,  made  to  two  or  more 
persons,  except  as  provided  in  the  next  following  section,  shall 
be  construed  to  create  estates  in  common,  and  not  in  joint  ten- 
ancy, unless  it  shall  be  expressed  therein  that  the  grantees  or 
devisees  shall  hold  the  same  in  joint  tenancy  and  to  the  suivivor 
of  them,  or  ?t  shall  manifestly  appear,  from  the  tenor  of  the 
instrument,  that  it  was  intended  to  create  an  estate  in  joint 
tenancy." 

Section  2923  provides  that  the  preceding  section  shall  not 
apply  to  conveyances  made  to  husband  and  wife. 


TENANCY    IN    ENTIUKTY.  167 

Under  a  statute  of  the  St:ite  of  Michigan,  similar  in  all  its 
essential  qualities  to  our  own,  the  court  held  that  "  Where 
lands  are  conveyed,  in  fee  to  husband  and  wife,  they  do 
not  take  as  tenants  in  common."  Fisher  v.  Provin,  25  Mich. 
347. 

They  take  by  entireties;  whatever  would  defeat  the  title  of 
one  would  defeat  the  title  of  the  other.  Manwaring  v.  Powell, 
40  Mich.  371. 

They  hold  neither  as  tenants  in  common  nor  as  ordinary  joint 
tenants.  The  survivor  takes  the  whole.  During  the  lives  of 
both,  neither  has  an  absolute  inheritable  interest,  neither  can  be 
said  to  own  an  undivided  half.  JEttmi  Ins.  Co.  v.  Resh,  40  Mich. 
241;   Allen  v.  Allen,  47  Mich.  74. 

While  the  rule  of  entireties  was  predicated  upon  a  fiction,  the 
legislative  intent,  in  this  State,  has  always  been  to  preserve  this 
estate,  and  has  continued  the  peculiar  statute  for  this  purpose. 
Estates  by  entireties  have  been  preserved  as  between  husband 
and  wife,  although  joint  tenancies  between  unmarried  persons 
have  been  abolished,  so  as  to  provide  a  mode  by  which  a  safe 
and  suitable  provision  could  be  made  for  married  women. 
Carver  v.  Smith,  siqyra. 

"  Where  a  rule  of  property  has  existed  for  seventy  years  and 
is  sustained  by  a  strong  and  uniform  line  of  judicial  decisions, 
there  is  but  little  room  for  the  court  to  exercise  its  judgment  on 
the  reasons  on  which  the  rule  was  founded.  Such  a  rule  of  prop- 
erty will  be  overruled  only  for  the  most  cogent  reasons  and  upon 
the  strongest  convictions  of  its  incorrectness.  It  is  evident  that 
the  legislature  of  1881  did  not  intend  to  repeal  the  statutes 
establishing  tenancies  by  entireties.  They  simply  intended  to 
enlarge,  in  some  particulars,  the  separate  power  of  the  wife, 
which  existed  already  under  the  acts  of  1852  and  the  year  fol- 
lowing. *  *  *  'It  did  not  abolish  estates  by  entireties  as 
between  husband  and  wife,  but  provided  that  when  a  joint  deed 
Avas  made  to  husband  and  wife,  they  should  hold  by  entireties, 
and  nob  as  joint  tenants  or  tenants  in  common.'  "  Carver  v. 
Smith,  supra. 

In  Chandler  v.  Cheney,  supra,  the  court  says:  "  It  was  a 
•well-settled  rule  at  common  law,  that  the  same  form  of  words, 
which,  if  the  grantees  were  unmarried,  would  have  constituted 
them  joint  tenants,  will,  they  being  husband  and  wife,  make 
them  tenants  by  entirety.  The  rule  has  been  changed  by  our 
statute  above  quoted." 

The  whole  trend  of  authorities,  however,  is  in  the  direction 
of  j)ieserving  such  tenancies,  where  the  grantees  sustain  the 
relation  of    husband    and  wife,  unless  from  the   language   em- 


168  JOINT    ESTATES. 

ployed  in  the  deed  it  is  manifest  that  a  different  pnrpose  was 
intended. 

Where  a  contrary  intention  is  clearly  expressed  in  the  deed,  a 
different  rule  obtains. 

"  A  husband  and  wife  may  take  real  estate  of  joint  tenants  or 
tenants  in  common,  if  the  instrument  creatinsz;  the  title  use  apt 
words  for  the  purpose."  1  Preston  on  Estates,  132;  2  Black- 
stone's  Com.,  Sherwood's  note;  4  Kent's  Com.,  side  page  363; 
1  Bishop  on  Married  Women  ;  Freeman  on  Co-Tenancy,  §  72  ; 
Fladung  V.  Rose,  58  Md.  13  (24). 

"  And  in  case  of  devise  and  conveyances  to  husband  and  wife 
together,  though  it  has  been  said  that  they  can  take  only  as  ten- 
ants by  entireties,  the  prevailing  rule  is  that,  if  the  instrument 
expressly  so  provides,  they  may  take  as  joint  tenants  or  tenants 
in  common."  Stewart  on  Husband  and  Wife,  §§  307-310; 
Tiedeman  on  Real  Property,  §  244. 

*'  And  as  by  common  law  it  was  competent  to  make  husband 
and  wife  tenants  in  common  by  proper  words  in  the  deed  or  de- 
vise," etc.  Hotlman  v.  Stigers,  28  la.  310;  Brown  v.  Brown, 
32  N.  E.  Rep.  1128. 

"  So  it  seems  that  husband  and  wife  may,  by  express  words, 
be  made  tenants  in  common  by  gift  to  them  during  coverture." 
McDermott  v.  French,  15  N.  J.  Eq.  80. 

In  Haddock  v.  Gray,  104  Ind.  59(5  (599),  a  conveyance  had 
been  made  to  Isaac  Cannon  and  Mary  Cannon,  who  were  husband 
and  wife,  during  their  natural  lives,  and  the  court  says:  "  The 
language  employed  in  the  deed  under  examination  plainly  declares 
that  Isaac  and  Mary  Cannon  are  not  to  take  as  tenaiita  by  en- 
tirety. This  result  would  follow  from  the  provision  destroying 
the  survivorship,  for  this  is  the  grand  and  essential  characteristic 
of  such  a  tenancy.  *  *  *  xhe  whole  force  of  the  language 
employed  is  opposed  to  the  theory  that  the  deed  creates  an  estate 
in  fee  in  the  husband  and  wife." 

The  court  further  says:  "  It  is  true  that  where  real  property 
is  conveyed  to  husband  and  wife  jointly  and  there  are  no  limit- 
ing words  in  the  deed,  they  will  take  the  estate  as  tenants  in 
entirety.  *  *  *  g^t;  vvhich  the  general  rule  is  as  we  have 
stated  it,  there  may  be  conditions,  limitations,  and  stipulations 
in  the  deed  conveying  the  property,  which  will  defeat  the  oper- 
ation of  the  rule.  Tlie  denial  of  this  proposition  involves  the 
affirmation  of  the  proposition  that  a  grantor  is  powerless  to  limit 
or  define  the  estate  which  he  grants,  and  this  would  conflict  with 
the  fundamental  principle  that  a  grantor  may  for  himself,  deter- 
mine what  estate  he  will  grant.  To  deny  this  right  would  be  to 
deny  to  parties  the  right  to  make  their  own  contracts.     It  seems 


ESTATE    IN    PARTNERSHIP.  169 

quite  clear,  upon  principle,  that  a  grantor  and  his  grantees  may 
lin[iit  and  define  the  estate  granted  hy  the  one  and  accepted  by 
the  other,  although  the  grantees  be  husband  and  wife." 

The  court  then  adopts  the  huiguage  of  Washburn,  supra,  and 
Tiedenian,  siij^ra. 

In  Edwards  v.  Beall,  siqwa,  the  court  held  that  when  lands 
are  granted  husband  and  wife,  as  tenants  in  common,  they  will 
hold  by  moieties,  as  otlier  distinct  and  individual  persons  would 
do. 

If,  as  contended  by  appellees,  the  rule  prevail  that  the  same 
words  which,  if  the  grantees  were  unmarried,  would  have  con- 
stituted them  joint  tenants,  will,  they  being  husband  and  wife, 
make  them  tenants  by  entireties,  then  it  would  result  as  a 
logical  conclusion  that  husband  and  wife  cannot  be  joint  ten- 
ants. Because,  by  this  rule,  words,  however  apt  or  appropriate 
to  create  a  joint  tenancy,  would,  in  a  conveyance  to  husband 
and  wife,  result  in  an  estate  by  entireties — joint  tenancy  would 
be  superseded  or  put  in  abeyance  by  the  estate  created  by  law- 
tenancy  by  entirety. 

The  result  of  such  reasoning  would  be  to  destroy  the  con- 
tractual power  of  the  parties  where  this  relationship  between 
the  grantees  is  shown  to  exist.  Any  other  process  of  reasoning 
would  carry  the  rule  too  far,  and  we  must  hold  it  modified  to 
the  extent  here  indicated.  Husband  and  wife,  notwithstandins 
tenancies  by  entirety  exist  as  they  did  under  the  common  law, 
may  take  and  hold  lands  for  life,  in  joint  tenancy,  or  in  com- 
mon, if  appropriate  language  be  expressed  in  the  deed  or  will 
creating  it,  and  we  know  of  no  more  apt  terms  to  create  a  joint 
tenancy  in  the  grantees  in  this  estate  than  the  expression  '*  con- 
vey and  warrant  to  Daniel  S.  Wiggins  and  Laura  Belle  Wiggins 
in  joint  tenancy." 

These  words  appear  in  the  granting  clause  of  the  deed  con- 
veying the  land  in  question,  and  the  estate  accepted  and  held 
by  the  grantees  is  thereby  limited,  and  they  hold  not  by  entire- 
ties but  in  joint  tenancy.  A  joint  tenant's  interest  in  property 
is  subject  to  execution.     Freeman  on  Ex.  125. 

Judgment  reversed,  with  instructions  to  the  circuit  court  to 
sustain  the  demurrer  to  each  paragraph  of  the  complaint. 


Estate  in  Copartnership, 

Greenwood  v.  Marvin,  111  N.  Y.  423;  19  N.  E.  228. 

Appeal  from  supreme  court,  general  term,  fifth  department. 
Action  by  Elizabeth  W.  Greenwood,  as  executrix  and  trustee 


170  JOINT    ESTATES. 

of  the  will  of  Simon  L.  Greenwood,  deceased,  against  Elizabeth 
S.  Marvin,  Percy  L.  Marvin,  as  executor  of  George  L.  Marvin, 
deceased,  and  individually,  and  the  heirs  and  legatees  of  George 
L.  Marvin  and  George  L.  Kingston,  executor,  of  Le  Grand 
Marvin,  deceased,  for  an  accounting  of  the  partnership  affairs  of 
George  L.  and  Le  Grand  Marvin.  The  action  was  originally 
commenced  by  Simon  L.  Greenwood,  as  assignee  of  Le  Grand 
Marvin's  interest  in  the  copartnership  property.  A  decree  hav- 
ing been  entered  for  plaintiff,  the  defendants  Elizabeth  S.  Mar- 
vin and  Percy  L.  Marvin  appeal  from  the  order  denying  a  new 
trial. 

RuGER,  C.  J.  This  action  was  originally  brought  by  Simon 
L.  Greenwood,  assignee  of  Le  Grand  Marvin,  to  procure  a  dis- 
solution of  the  partnership  theretofore  existing  between  Le  Grand 
and  George  L.  Marvin,  a  determination  as  to  what  constituted 
the  assets  of  the  firm,  the  conversion  of  such  assets  into  money, 
the  payment  of  the  firm  obligations,  and  an  accounting  between 
the  respective  members  in  regard  to  all  their  partnership  trans- 
actions, and  a  determination  of  their  several  interests  in  the 
residue  of  such  property.  The  complaint  contained  express  alle- 
gations that  certain  real  property  therein  specifically  described 
was  partnership  property,  and  constituted  a  part  of  the  firm 
assets.  The  original  answer  of  the  defendants,  while  admitting 
the  existence  of  the  partnership,  stated,  with  respect  to  the  alle- 
gations relating  to  the  ownershipof  the  real  property,  as  follows: 
"  And  they  deny  the  said  Le  Grand  and  George  L.  Marvin,  as 
copartners,  owned  or  held  in  the  name  of  said  George  L.  Marvin, 
as  trustee  or  otherwise,  the  real  estate  mentioned  or  described  in 
said  complaint,  or  any  part  thereof,  or  that  they  were  at  any 
time  copartners  in  any  real  estate  purchased  with  money  or  means 
charged  to  the  respective  partners  ;  and  said  defendants  deny 
that  in  any  real  estate  mentioned  or  described  in  said  complaint, 
the  leoral  title  to  which  was  in  the  said  George  L.  Marvin,  said 
Le  Grand  Marvin  had  had  at  any  time  any  interest  whatever, 
except  such  as  he  may  have  obtained  under  and  by  virtue  of  a 
certain  instrument  in  writing  executed  by  the  said  Le  Grand  and 
George  L.  Marvin,  of  which  the  following  is  a  copy."  Then 
follows  a  copy  of  a  partnership  agreement  l)et\veen  the  parties, 
executed  in  1852,  which  is  hereinafter  recited,  so  far  as  it  is 
material  to  the  questions  in  this  case.  This  answer  is  plainly 
evasive,  and  leaves  the  question  of  the  ownership  of  the  real 
estate,  in  terms,  to  depend  upon  the  construction  to  be  given  to 
the  agreement  of  1852.  Upon  the  trial  of  the  action  before  the 
court  without  a  jury,  an  interlocutory  judgment  was  rendered, 
determining  that  certain  portions  of  the  real  estate  described  in 


ESTATE    IN    PARTNERSHIP.  171 

the  complfiint  were  partuersliip  property,  and  ordering  a  refer- 
ence to  take  nil  account  of  the  partnership  affairs.  Tliis  judg- 
ment was  aflfirmed  upon  appeal  to  the  general  term,  and  from 
such  judgment  the  defendants  appeal  to  this  court. 

It  is  not  our  intention  to  enter  into  a  detailed  examination  of 
the  evidence  in  the  case,  inasmuch  as  that  duty  has  been  most  fully 
and  satisfactorily  performed  by  Mr.  Justice  Smith  in  his  opinion 
at  general  term,  and  we  will  therefore  refer  only  to  such  addi- 
tional facts  and  considerations  as  have  been  suijorested  upon  the 
argument  in  this  court.  It  has  already  been  seen  that  the  main 
question  in  this  case  is  whether  certain  real  estate,  purchased  dur- 
ing the  existence  of  the  partnershi[),  and  title  talcen  in  the  name 
of  George  L.  Marvin,  was  partnership  property,  and  belonged  to 
the  tirm,  or  was  the  individual  property  of  George  L.  Marvin. 
As  found  by  the  trial  court,  the  parties  formed  a  partnership 
under  the  firm  name  of  Le  Grand  &  George  L.  Marvin,  to  do  a 
land-agency  and  real-estate  business  at  BuffaU),  in  1838,  which 
continued  without  practical  change  in  its  mode  of  doing  business 
until  1864,  when  it  was  terminated  by  mutual  consent.  A  writ- 
ten agreement  of  partnership  was  executed  at  the  organization  of 
the  firm  in  1838,  by  which  the  members  were  to  become  equal 
partners  in  a  business  already  established,  and  which  had  for 
some  time  been  carried  on  by  Le  Grand  alone,  and  called  '*  law 
and  agency  business,  and  business  appertaining  thereto."  In 
1842  other  written  agreements  were  made  between  the  parties, 
by  which  it  was  provided,  among  other  things,  that  the  original 
firm  was  dissolved,  but  that  its  members  should  still  continue  the 
partnership,  and  complete  the  business  of  the  old  firm,  but  that 
George  L.  should  be  the  legal  owner  of  the  property  employed 
and  acquired  in  such  business,  but  should  pay  to  Le  Grand  for 
his  services  his  expenses,  provided  they  did  not  exceed  one-half 
the  net  profits  of  the  concern,  and  should  account  to  him  for  such 
net  profits.  In  1852  a  third  agreement  was  made  between  them, 
by  which,  among  other  things,  it  was  provided  that  the  partner- 
ship firm  should  continue  at  the  equal  benefit  and  risk  of  the 
respective  parties,  and  declaring  that  "  the  real  estate  and  the 
interest  therein  of  said  parties,  whether  standing  in  the  name  of 
said  Le  Grand  or  George,  shall  be  and  are  for  the  equal  benefit 
and  interest  of  said  parties,  share  and  share  alike,  subject  to  all 
liabilities.  *  *  *  Xhe  personal  property  of  said  parties  is 
now  the  equal  property  of  said  p:irties,  share  and  share  alike," 
with  a  single  exception,  not  now  important  to  notice. 

It  further  appeared  that  no  settlement  of  partnership  accounts 
had  ever  been  had  between  the  members  of  the  firm,  and, 
although  they  kept  books  of  account,  they  were  kept  in  such  a 


172  JOINT    ESTATES. 

manner  that  it  was  impossible  to  determine  accurately  therefrom 
how  much  either  of  the  members  of  the  firm  had  drawn  from  or 
paid  to  or  for  the  firm,  or  what  the  respective  interests  of  the 
parties  were  in  the  partnership  assets.  It  did  appear,  however, 
that  the  [)urchase  i)iice  of  the  real  estate  in  question,  which  was 
mainly  acquired  in  1842,  was  })aid  from  partnership  funds; 
and  the  taxes  and  expenses  thereon  were  generally  paid  indifl'er- 
ently  by  both  members  of  the  firm,  and  its  rents,  issues,  and 
profits  had  been  collected,  received,  and  accounted  for  to  the 
firm,  as  firm  property,  indiiforently  by  each  of  the  parties. 
Much  other  evidence  was  also  given  in  relation  to  this  subject 
upon  the  trial,  including  the  making  of  express  and  implied  ad- 
missions and  declarations  by  George  L.  Marvin  in  connection 
with  the  possession,  occupation,  and  leasing  of  such  real  estate, 
that  the  same  belonged  to  the  firm.  Some  declarations,  written 
and  oral,  of  Le  Grand  Marvin,  made  mostly  between  the  spring 
of  1842  and  the  year  1852,  to  the  effect  that  George  L.  Marvin 
was  the  owner  of  the  property,  were  testified  to  on  the  part  of 
the  defendants;  but  we  ascribe  little  weight  to  them,  inas- 
much as  there  were  obvious  reasons,  fully  disclosed  in  the 
negotiations  leading  to  the  purchase  of  the  property,  on 
account  of  which  at  the  time  it  was  thought  best  by  all  parties 
that  the  title  thereto  should  be  vested  in  George  L.  Marvin, 
and  the  same  reasons  which  dictated  that  course  would  continue 
to  influence  any  declarations  thereafter  made  by  Le  Grand  in 
reference  to  the  subject.  The  only  change  made  in  the  rights  of 
the  parties  by  the  agreement  of  1842,  was  to  place  the  legal  title 
of  their  property  and  acquisitions  in  George  L.  Marvin,  instead 
of  the  firm.  The  equitable  rights  of  the  parties  were  to  remain 
the  same.  The  legal  owner  was  to  account  to  the  other  party 
for  the  net  profits  of  the  business,  and  no  other  mode  of  divis- 
ion is  suggested  than  that  of  equality.  If,  therefore,  that 
agreement  effected  any  change  in  the  relations  of  the  parties,  it 
operated  as  a  temporary  expedient  to  bridge  over  the  period  of 
Le  Grand  Marvin's  pecuniary  embarrassment,  presumably  with  a 
view  of  restoring  the  original  relations  of  the  parties  at  some 
future  time  when  it  would  be  safe  to  do  so.  If  that  agreement 
was  executed  —  as  seems  very  probable  —  with  the  view  of  hind- 
ering and  delaying  the  creditors  of  Le  Grand,  it  was  still  com- 
petent for  the  parties,  in  the  absence  of  interference  by  credit- 
ors, to  rescind  it  at  any  time,  and  to  restore  to  each  other  an 
equal  legal  interest  in  the  property  acquired  under  such  agreement. 
We  think  this  was  intended  to  be  accomplished  by  the  contract 
of  1852.  That  agreement  amounted  to  an  unqualified  acknowl- 
edgment by  George  L.  Marvin  that  the  parties  had  theretofore 


ESTATE    IN    PARTNERSHIP.  173 

dealt  in  nn  iicqiiired  real  estate,  and  owned  such  property  as  part- 
ners, althouj^h  it  nominally  stood  in  the  name  of  George  L.  Mar- 
vin; and  that  such  pro[)erty  was  intended  to  he  subjected  to  the 
oI)ligati()ns  of  the  last  partnership  agreement.  It  did  not  i)ur- 
poit  to  convey  any  property,  or  create  any  title  ;  but  itacknowl- 
ediii'd  that  the  property  previously  accjuired  by  the  parties  both 
real  and  personal,  belonged  in  equal  proportions  to  the  re8[)ective 
members  of  the  firm.  The  appellants  refer  to  the  finding  of  the 
trial  court  that  Le  Grand  Marvin  did  not  acquire  any  interest  in 
the  leal  estate  by  the  contract  of  1852,  and  claim  that  the  plain- 
tiff, not  having  appealed  from  such  finding,  is  bound  thereby, 
and  cannot  now  question  it.  It  is  undoubtedly  true  that  he  did 
not  acquire  his  interest  at  that  time,  inasmuch  as  the  contention 
of  the  plaintiff  is  that  it  was  acquired  at  the  time  the  property 
was  bought ;  and  that  finding,  therefore,  is  not  inconsistent  with 
the  position  that  the  C(mtract  of  1852  is  most  persuasive  evi- 
dence of  the  secret  trust  upon  which  the  property  was  origi- 
nally obtained  by  George  L.  Marvin.  If  effect  be  given  to 
all  of  the  language  employed  by  the  parties  in  the  agreement,  it 
is  not  possible  to  give  any  substantial  operation  to  this  clause 
of  the  contract  without  holding  it  to  ap|)ly  to  the  lands  in  con- 
troversy standing  in  the  name  of  George  L.  Marvin.  The  writ- 
ing, like  the  other  i)artnership  agreements,  was  ambiguous  in  its 
language,  and  required  extrinsic  evidence  to  explain  the  nature 
of  the  business  and  the  identity  of  the  property  referred  to 
therein.  Parol  evidence  for  this  purpose  was  entirely  competent, 
and  has  been  given  with  such  fullness  that  nothing  is  left  uncer- 
tain with  reference  to  those  questions.  Fairchild  v.  Fairchild, 
64  N.  Y.  471. 

The  question,  therefore,  as  to  whether  the  lands  in  dispute 
constituted  partnership  property,  was  one  of  fact  upon  all  of  the 
evidence  in  the  case,  and  was  determined  by  parol  evidence  in- 
dependent of  the  particular  form  which  the  transaction  took,  or 
the  name  in  which  the  title  was  taken.  Chester  v.  Dickerson, 
54  N.  Y.  1 ;  Fairchild  v.  Fairchild,  supra.  The  negotiations  for, 
its  purchase  were  mainly  conducted  by  Le  Grand  ;  and  when  it 
was  consummated  by  the  delivery  of  the  joint  and  several  notes 
of  George  L.,  Asa  and  Le  Grand  Miirvin  inpayment  of  the  pur- 
chase price,  Le  Grand  took  an  active  part  in  the  subsequent 
management  and  control  of  the  i)roperty,  and  contributed  to  the 
payment  of  the  obligations  given  upon  its  })urcha8e.  Consider- 
ing the  equivocal  chaiacter  of  the  answer,  the  evident  intent  of 
the  agreement  of  1842,  the  unqualified  acknowledgments  of  the 
contract  of  1852,  and  the  implied,  as  well  as  express,  admissions 
of  George  L.  Marvin  subsequent  to  that  time,  it  is  conceding  to 


174  JOINT    ESTATES. 

the  appellants  in  this  case  all  that  can  fairly  be  claimed  for  them, 
that  they  have  made  a  question  of  conflicting  evidence  as  to  the 
ownership  of  the  property  in  dispute,  calling  for  a  finding  of  fact 
hy  the  trial  court.  The  findings  that  such  property  was  pur- 
chased for  partnership  purposes,  and  i)aid  for  with  partnership 
funds,  having  been  affirmed  by  the  general  term,  are  necessarily 
conclusive  upon  us  as  to  the  ownershi})  and  character  of  the 
|)roperly.  Real  estate  purchased  by  a  partnership  firm  for  part- 
ner>hip  purposes,  with  partnership  funds,  is  regarded  in  equity, 
so  far  as  the  firm  and  its  creditors  are  concerned,  as  personal 
property.  Widows  are  not  dowable  therein.  Sage  v.  Sherman, 
2  N.  Y.  417.  The  interests  of  the  respective  members  of  the 
firm  in  such  property  are  not  required  to  be  established  by  deed 
or  instrument  in  writing  under  the  statute  of  frauds  (Chester  v. 
Dickerson,  54  N.  Y.  1  ;  Bobbins  v.  Bobbins,  89  N.  Y.  251),  and 
the  creation  of  trusts  as  to  such  interests  is  not  prohibited  by 
the  statute  of  uses  and  trusts  (Fairchild  v.  Fairchild,  64  N.  Y. 
471;  xMarvin  v,  Marvin,  53  N.  Y.  607;  Ct.  of  Appeals,  MS. 
opinion  by  Allen,  J. ;  Bobbins  v.  Bobbins,  siqyra).  After  the  dis- 
solution of  a  firm,  and  the  claims  of  its  creditors  are  discharged, 
and  the  equities  of  the  respective  partners  in  its  assets  are 
determined  and  satisfied,  such  property,  so  far  as  it  is  preserved 
in  specie,  and  is  awarded  or  conveyed  to  the  respective  members, 
undoubtedly  loses  its  character  of  personal  property,  and  again 
becomes  subject  to  the  rules  governing  the  devolution  of  real 
estate.  But  so  long  as  the  partnership  affairs  remain  unsettled, 
like  all  other  assets  of  the  firm  its  real  estate  is  equitably  pledged 
to  creditors,  and  liable  to  be  absorbed  and  disposed  of  in  the 
process  of  liquidating  the  firm  debts,  and  satisfying  the  claims 
of  the  respective  partners  as  against  each  other.  As  was  said 
by  Church,  C.  J.,  in  the  Fairchild  case;  "  The  English  rule  gives 
to  the  real  estate  of  a  partnership  the  character  and  qualities  of 
personal  property  as  to  all  persons,  and  the  remainder,  after 
paying  debts  and  adjusting  the  equities  of  the  partners,  goes  to 
,the  personal  representatives,  and  not  to  the  heir,  probably  on 
account  of  the  great  injustice  which  would  result  by  the  laws  of 
inheritance  in  England.  *  *  *  g^t;  the  American  rule,  that 
the  remainder  descends  to  the  heir,  does  not  atfect  the  character 
of  the  property  as  partnership  effects,  except  that  the  incidents 
and  qualities  of  real  estate  are  revived.  It  is  divided  as  so  much 
money  capital  would  be;  but  it  resumes  its  original  qualities. 
The  same  evidence,  however,  which  would  make  it  a  partnership 
property,  for  the  purpose  of  paying  debts  and  adjusting  the 
equities  between  the  copartners,  would  establish  it  for  the  pur- 
poses of  final  division."     In  this  action  we  are  concerned  only 


ESTATE    IN    PARTNERSHIP.  175 

with  the  character  which  the  law  ascribes  to  partnership  prop- 
erty while  ill  the  hands  of  the  firm  as  a  leg.il  entity  having  abso- 
lute power  of  disposition  thereof  for  the  purposes  of  the  part- 
nership business.  When  it  becomes  released  from  the  trust 
imposed  upon  it  as  j)artnership  property,  it  doubtless  resumes 
the  character  of  real  estate;  but  it  is  quite  probable  that  such  a 
result  may  never  happen  in  this  case,  as  one  of  the  principal 
objects  of  the  action  is  to  secure  its  sale  for  the  purpose  of  pay- 
ing Hrin  debts,  which  appear  to  exist  in  considerable  amf)unts. 

It  is  chunied  by  the  respondent  that  the  question  as  to  the 
ownership  of  this  real  estate  has  been  previously  adjudicated  in 
an  action  between  George  H.  Marvin  and  Le  Grand  Marvin,  in 
which  Geo.  L.  Marvin  was  a  privy,  and  bound  by  the  decision 
of  the  case.  We  think  there  is  much  reason  for  this  contention, 
but  do  not  consider  it  necessary  to  pass  upon  it,  in  view  of  the 
similar  result  reached  upon  the  other  branch  of  the  case. 

A  further  claim  is  made  by  the  defendants  that  the  plaintiff 
has  not  such  an  interest  in  the  subject  of  the  action  as  entitles 
her  to  maintain  it.  The  aigument  is  that  the  conveyance  from 
Le  Grand  Marvin  to  Simon  L.  Greenwood  was  void,  as  being  a 
transfer  of  real  estate  in  trust  for  the  benefit  of  the  grantor, 
and  was  not  one  of  the  trusts  authorized  to  be  created  by  the 
statute  of  uses  and  trusts.  .  We  have  already  seen  that  such 
property,  until  discharged  from  the  trust  under  which  it  was 
held  as  partnership  property,  cannot  be  regarded  as  real  estate  for 
any  purpose.  This  action  is  not  brought  for  the  purpose  of  re- 
coveriog  the  possession  of  real  estate  or  affecting  his  title.  The 
question  of  the  ownership  of  the  real  estate  is  merely  incidental 
to  the  main  object  of  the  action,  and  would  have  arisen  in  the 
same  manner  upon  a  i)Mrtnership  accounting,  if  the  real  estate 
had  not  been  mentioned  in  the  pleadings.  King  v.  Barnes,  109 
N.  Y.  267;  16  N.  E.  Rep.  332.  It  was  not  improper  to  refer 
iu  the  complaint  to  the  character  of  the  partnership  assets,  but 
it  was  wholly  unnecessary  in  order  to  secure  an  accounting  as  to 
partnership  atFairs.  If,  however,  we  examine  the  character  of 
the  transfer  from  Le  Grand  Marvin  to  Greenwood,  it  will  be 
seen  that  it  does  not  purport  to  create  a  trust  in  real  property, 
and,  if  such  property  does  come  to  the  hands  of  the  assignee,  it 
will  result  from  the  contingencies  attending  the  judicial  settle- 
ment of  the  partnership  estate,  and  not  through  the  force  of  the 
transfers  to  him.  The  evidence  shows  that  Le  Grand  Marvin, 
before  the  commencement  of  the  action,  conveyed  by  an  instru- 
ment in  writing  to  Simon  L.  Greenwood,  his  heirs  and  assigns, 
forever,  all  of  the  property,  both  real,  personal,  and  mixed, 
owned    by  him  in  partnership  with  George  L.  Marvin.     It  also 


176  JOINT    ESTATES. 

appeared  that  Greenwood,  on  the  same  date,  executed  and  de- 
livered to  Le  Grand  an  instriiinent  in  writing  declaring,  in 
substance,  that  he  held  the  property  and  its  proceeds,  after  de- 
ducting therefrom  payment  for  hid  disbursements  and  services 
in  manaijinir,  sellinfj,  and  taking  care  of  the  same  in  trust  to  and 
for  the  use  of  Lo  Grand.  Tlio  legal  effect  of  the  assignment 
referred  to  was  to  vest  in  the  assignee  the  power  of  calling  the 
other  members  of  the  firm  to  account,  and  to  enforce  the  rights 
of  Le  Grand  in  any  surplus  in  the  assets  which  might  remain 
after  liquidation  of  the  firm's  obligations,  and  the  adjustment  of 
partnership  equities.  It  gave  no  present  interest  in  specific  arti- 
cles of  property,  but  armed  the  assignee  with  power  to  procure 
its  conversion  into  money  by  sale  and  distribution  of  any  residue 
of  the  proceeds,  in  whatever  form  they  might  exist,  to  the  respect- 
ive members,  according  to  their  interests  therein.  The  right 
thus  transferred  was  a  mere  chose  in  action,  subject,  in  respect 
to  its  mode  of  transfer,  to  the  rules  regulating  the  disposition  of 
personal  property  alone.     Section  1910,  Code  Civil  Proc. 

We  are  not  able  to  see  any  point  of  view  from  which  appel- 
lants' contention  can  be  supported.  A  large  portion  of  the 
property  conveyed  was  confessedly  personal  property,  in  respect 
to  which  the  provision  of  the  statute  of  uses  and  trusts  confes- 
sedly has  no  application.  The  trust  as  to  such  property,  if  one 
was  created,  was  undoubtedly  valid,  and  conferred  a  right  of 
action  upon  the  assignee  to  enforce  an  accounting  as  to  all  the 
partnership  assets.  But  the  declaration  of  trust  was  confined  to 
the  interest  passing  by  the  assignment,  and,  as  we  have  seen, 
that  instrument  conveyed  no  legal  interest  in  the  real  estate  of 
the  firm.  It  may  further  be  said  that  this  claim  of  the  appel- 
lants is  in  the  nature  of  a  plea  in  abatement,  and  assumes  the 
right  of  Le  Grand  Marvin  to  recover  his  interest  in  the  part- 
nership assets,  but  insists  that  the  plaintiff  has  not  succeeded  to 
his  rights.  Such  a  plea  is  styled  a  "  dilatory"  one,  as  it  does 
not  affect  the  merits  of  the  action,  and  is  not  favored  in  law. 
A  proper  regard  for  justice  and  the  decent  administration  of  the 
law  requires  that  a  litigation  which  has  already  raged  for  a  quar- 
ter of  a  century  over  a  question  which  the  evidence  seems  to 
place  beyond  reasonable  doubt,  should  be  decided  upon  its  mer- 
its, and  not  disposed  of  on  a  technical  point  which  would  remand 
the  controversy  to  be  begun  anew  between  parties  who  are  all 
represented  in  this  action,  and  whose  rights  can  be  effectually 
settled  herein.  We  are  of  the  opinion  that  the  defendants  have 
no  such  interest  in  the  question  as  entitles  them  to  contest  the 
validity  of  this  assignment.  Assuming  that  the  real  estate  is 
partnership  property,  as  we  must,  their  only  interest  in  that  part 


PARTITION.  177 

thereof  which  did  not  belong  to  their  testator  was  to  see  that  it 
was  awarded  to  Le  Grand  Marvin,  or  someone  who  legally  rep- 
resented him.  As  between  Le  Grand  Marvin  and  his  assignee, 
the  conveyance  of  such  interest  was  undoubtedly  valid,  and 
transferred  the  legal  right  to  demand  an  accounting  to  such 
assignee.  Le  Grand  Marvin  was  made  a  party  defendant  to  this 
action,  and  would  undoubtedly  bo  bound  by  any  adjudication 
made  therein.  It  was  s;iid  by  Church,  C.  J.,  in  Sheridan  v. 
Mayor,  etc.,  68  N.  Y.  30,  that  "  A  plaintiff  is  the  real  party  in 
interest  under  the  code,  if  he  has  a  valid  transfer  as  against  the 
assignor,  and  holds  the  legal  title  to  the  demand.  The  defend- 
ant has  no  legal  interest  to  inquire  further.  A  payment  to,  or 
recovery  by,  an  assignee  occu))ying  this  position,  is  a  protection 
to  the  defendant  against  any  claim  that  can  be  made  by  the 
assignor."  See,  also,  Seymour  v.  Fellows,  77  N.  Y.  178; 
Sullivan  v.  Bonesteel,  79  N.  Y.  631.  The  right  of  the  present 
plaintiff  to  continue  the  action  as  the  executrix  and  legatee  of 
Simon  Greenwood  was  adjudicated  by  the  order  substituting  her 
as  plaintiff  in  his  place.      Smith  v.  Zalinski,  94  N.  Y.  519. 

We  have  examined  the  other  exceptions  in  the  case  with  con- 
siderable care,  but  find  none  of  sufficient  materiality  to  lead  us 
to  believe  that  any  error  justifying  a  reversal  of  the  judgment 
was  committed  by  the  trial  court.  The  judgment  is  therefore 
affirmed,  with  costs.     All  concur. 


Partition  —  Involving   a  Number    of  Collateral  Questions. 

Burton  v.  Perry,  14G  111.  71  i  34  N.  E.  60. 

Magruder,  J.  The  complainants.  Perry  and  Henderson,  file 
this  bill  for  the  partition  of  40  acres  of  land,  and  claim  to-be 
the  owners  of  an  undivided  half  thereof.  The  defendants  deny 
the  ownership  asserted  by  the  complainants,  and  contend  that 
they  iire  themselves  the  owners  of  the  whole  40  acres.  There- 
fore the  first  question  to  be  determined  is  whether  the  com- 
plainants own  any  interest  in  the  land,  and,  if  they  do,  what 
interest. 

It  is  not  denied,  that,  on  February  16,  1836,  Isaac  Cook,  then 
holding  the  government  title  to  80  acres,  of  which  the  tract  of 
40  acres  now  in  controversy  is  the  south  half,  conveyed  an  un- 
divided half  of  said  80  acres  to  Asa  W.  Chambers  and  Sheldon 
Benedict.  The  complainants  claim  title  through  a  conveyance 
from  Benedict  to  Chambers,  and  three  conveyances  from  Cham- 
bers to  themselves.  Chambers  and  Benedict  left  Chicago  in 
1838.     Benedict  has  never  been  seen  or  heard  of  but  once  since 

12 


178  JOINT    ESTATES. 

that  time.  It  is  said  that  in  tho  your  1848  ho  made  a  visit  to 
Cliaiubors  while  tho  hitter  was  living  in  the  Slate  of  Texas,  hut 
after  rciniaininii;  with  Chambers  two  or  three  weel<s  he  (hsap- 
peared,  and  all  further  trace  of  iiiiii  has  been  h>st.  He  paid  no 
taxes  upon  the  property  in  question  after  he  left  Chicago,  noi- (h) 
the  lecords  of  Cook  County,  where  these  premises  are  located, 
show  that  he  has  ever  made  any  conveyauce  of  the  land,  or  insti- 
tuted any  proceeding,  or  done  any  act  indicating  a  claim  of  own- 
ershii),  since  tho  year  1838.  Chambers,  acicording  to  his  own 
testimony,  was  not  in  Chicago  from  1838  to  1872.  During  a 
period  of  more  thiin  30  years  his  whereabouts  were  unknown, 
and  were  only  discovered  in  the  year  1871,  or  thereabouts,  after 
considerable  search  by  a  party  acting  foi",  or  in  concert  with  the 
complainants.  After  his  disappearance  in  1838,  he  paid  no 
taxes  upon  the  land,  nor  did  he  or  his  grantees  thereafter  take 
any  steps  to  assert  title  thereto  until  the  filing  of  the  bill  in  this 
case,  in  July,  1873.  All  the  facts,  however,  in  the  present  record, 
which  tend  to  show  laches  by  reason  of  delay  in  beginning  suit, 
were  before  this  court  in  1884,  and  again  in  1888.  Perry  v. 
Burton,  111  111.  138;  Id.  126  111.  599  ;  18  N.  E.  Rep.  653.  The 
only  witness  who  testifies  that  a  deed  was  made  by  Benedict  to 
Chambers  is  Chambers  himself.  The  latter  swears  that  after 
leaving  Chicago,  in  1838,  he  remained  about  ten  months  in 
Georgetown,  Vermillion  County,  111.;  that  he  went  to  Texas  in 
June,  1841,  taking  Mrs.  Chambers  with  him;  that  he  lived  in 
Navarro  County,  Texas,  from  1843  to  1872,  about  two  miles 
from  a  little  town  called  Mt.  Pisgah,  containing  15  or  20  houses, 
13  miles  from  Corsicana,  the  principal  town  of  the  county,  and 
about  110  miles  from  Bryant,  Brazos  County,  where  the  com- 
plainants. Perry  and  Henderson,  who  are  attorneys  at  law,  reside ; 
that  he  never  saw  Benedict,  after  leaving  Chicago,  until  1848  ; 
that,  in  November  of  that  year,  Benedict  came  to  his  house,  in 
Navarro  County,  "flat  broke  and  afoot,"  saying  that  he  came 
through  Galveston,  and  had  been  in  New  Orleans  and  New  York, 
and  divers  places  ;  that  he  then  sold  to  Chaml)ers  all  his  interest 
in  this  laud,  and  other  lands  in  Illinois,  for  $200,  of  which  $75 
was  paid  in  cash,  and  for  the  balance  he  took  a  saddle  horse  ; 
that  Benedict  then  made  a  deed  to  Chambers  of  the  land  ;  that 
neither  had  any  papers  showing  the  description,  l)ut  both  remem- 
bered the  description;  that  the  deed  was  acknowledged  before  a 
justice  of  the  peace,  who  is  dead,  and  attested  by  two  witnesses, 
who  are  both  dead;  that  Benedict  then  rode  away,  and  Cham- 
bers has  never  seen  nor  heard  of  him  since,  or  of  any  of  his 
relatives,  if  he  had  any  ;  that  Chambers  never  recorded  the  deed, 
but  kept  it  for  14  years  on  his  place  in  Texas  ;  that  in  1862  he 


PARTITION.  179 

left  home,  and  deposited  his  papers  in  a  trunk,  in  tlie  care  of  a 
daughter  then  25  years  old  ;  that  the  deed  was  lost  during  his 
absence,  and  he  has  never  been  able  to  find  it. 

The  question  as  to  the  execution  of  the  deed  from  Benedict  to 
Cliamber-s  was  passed  upon  by  this  court  in  the  decision  n)ade  in 
1884.  Perry  v.  Burton,  111  III.  138.  Counsel  for  dcfenchinis 
refer  to  many  circumstances  brought  to  light  by  the  evidence 
taken  since  the  first  and  second  hearings  of  the  cause,  which  are 
alleged  to  demonstrate  the  falsity  of  the  testimony  given  by 
Chambers.  We  do  not  deem  it  necessary,  however,  to  enter 
upon  a  discussion  of  this  subject,  as  we  have  reached  the  con- 
clusion, for  the  reasons  hereafter  stated,  that  the  defendants 
must  be  regarded  i\s  bona  fide  purchasers  of  the  one-fourth  inter- 
est formerly  held  by  Benedict,  without  notice  of  the  deed  said  to 
have  been  made  by  him  to  Chambers,  and  consequently  are 
entitled  to  protection,  as  against  the  latter  deed.  Some  time  in 
1871  or  1872,  Chambers  conveyed,  or  attempted  to  convey,  all 
his  interest  in  said  tract  of  80  acres,  described  as  the  E.  ^  N. 
E.  \  section  20,  etc.,  and  in  other  lands  in  Illinois,  to  the  com- 
plainants, and  received  therefor  the  sum  of  only  $100.  About 
the  same  time  the  complainants  agreed  with  a  real  estate  agent 
in  Chicago  to  convey  to  him  one-half  of  such  interest  in  the  land 
as  they  should  finally  recover,  upon  condition  that  he  should 
take  possession  of  the  property,  employ  attorneys,  perfect  the 
title,  and  pay  all  costs,  expenses,  and  attorneys'  fees.  We 
agree  with  counsel  for  the  defendants  that  the  agreement  in 
question  was  champertous  and  void,  and  could  not  be  enforced, 
as  between  the  parties  to  it.  Thompson  v.  Reynolds,  73  III. 
11;  Coleman  v.  Billings,  89  111.  183.  But  we  do  not  regard 
such  agreement  as  material  in  the  consideration  of  this  case, 
as  the  present  suit  is  not  between  the  complainants  and  the 
agent  so  employed  by  them.  Torrence  v.  Shedd,  112  111.  466; 
3  Amer.  &  Eng.  Enc.  Law,  p.  86.  It  is  not  denied  by  the 
complainants  that,  in  the  fall  of  1844,  Isaac  Cook  was  the  owner 
of  the  other  undivided  one-half  of  the  80  acres  which  had  not 
been  conveyed  in  1836  to  Chambers  and  Benedict.  The  un- 
divided half  so  conveyed  to  Chambers  and  Benedict  was  sold  for 
taxes  to  Cook  on  November  28,  1842,  and  the  sheriff"  issued  a  tax 
deed  therefor  to  him  on  December  9,  1844.  It  is  claimed  by 
the  defendants  that  Cook,  holding  under  said  tax  deed,  and  under 
the  deed  to  him  of  the  other  half,  as  color  of  title,  paid  all  the 
taxes  legally  assessed  upon  the  whole  tract  of  80  acres  from 
1844  to  1854,  inclusive,  while  the  land  was  vacant  and  unoccu- 
pied. We  have  heretofore  passed  upon  the  question  of  the 
payment  of  taxes  by  Cook  under  said  tax  deed,  and  have  held 


180  JOINT    ESTATES. 

that  the  payment  of  taxes  by  him  during  the  period  aforesaid 
was  not  established  by  proof.  Perry  r.  Burton,  111  111.  138. 
Counsel  cliiini  that  there  it?  now  new  evidence  in  tho  record  which 
shows  that  Cook  did  pay  the  taxes  on  the  undivided  half  con- 
veyed to  him  by  the  tax  deed  for  a  i)eriod  of  seven  successive 
years  between  1844  and  1854.  We  find  no  evidence  whatso- 
ever in  the  record  which  shows  that  the  80  acres  were  vacant 
and  unoccupied  for  seven  successive  years  during  the  period 
from  1844  to  1854.  Cook  says  nothing  upon  this  subject,  and 
the  other  witnesses,  to  whose  testimony  we  have  been  referred, 
speak  of  the  land  as  it  was  after  1854.  In  the  absence  of  proof 
that  the  land  was  vacant  and  unoccupied,  or  that  Cook  was  in 
possession  of  it,  during  said  period  of  seven  years,  it  is  imma- 
terial, so  far  as  the  bar  of  the  statute  of  limitation  is  concerned, 
whether  the  taxes  were  paid  or  not;  and  any  discussion  of  the 
question  whether  the  defense  based  npon  the  payment  of  taxes 
under  the  tax  deed  to  Cook  has  or  has  not  become  res  adjudicata 
under  the  former  decisions  of  this  court  would  be  unnecessary 
and  fruitless. 

In  1854  Cook  sold  the  80  acres  to  John  W.  Finnell  and  Richard 
C.  Wintersmith  for  $4,000,  and  afterwards,  by  warranty  deed 
dated  July  9,  1857,  conveyed  to  them  tho  80  acres  so  sold.  On 
January  9,  1856,  each  undivided  ^  of  said  80  acres,  being  the  E. 
-^  N.  E.  ^  section  20,  etc.,  was  separately  sold  for  the  taxes  of 
1855  to  Frederick  R  Wilson,  and  in  pursuance  of  such  sale  the 
sheriff  afterwards  executed  a  tax  deed,  dated  August  23,  1859, 
to  Wilson,  conveying  to  him  the  whole  of  the  80  acres.  After- 
wards, by  deed  dated  April  26,  1865,  Wilson  conveyed  the  S.  -J 
of  the  E.  ^  N.  E.  |-  section  20,  etc.,  being  the  40  acres  in  con- 
troversy in  this  suit,  to  Finnell,  and  by  deed  of  the  same 
date  conveyed  the  N.  ^  of  said  E.  ^,  etc.,  to  Wintersmith. 
By  way  of  further  effecting  a  partition  of  the  80  acres  be- 
tween them,  Wintersmith  or  his  grantees,  by  deed  dated  April 
24,  1869,  conveyed  to  Finnell  said  S.  40  acres,  and  by  deed 
of  the  same  date,  Finnell  conveyed  said  N.  40  acres  to  Winter- 
smith  or  his  grantees.  On  August  29,  1869,  Isaac  Cook  and 
John  W.  Finnell  and  Henry  A.  Montgomery  and  Abner  Taylor, 
the  two  latter  being  grantees  through  mesne  conveyances  from 
said  Wintersmith,  filed  a  bill  in  the  superior  court  of  Chicago 
against  the  unknown  heirs  and  devisees  of  Asa  W.  Chaml)ers, 
deceased,  and  the  unknown  heirs  and  devisees  of  Sheldon  Bene- 
dict, deceased,  as  defendants.  This  bill  set  up  that  Cook  con- 
veyed an  undivided  ^  of  E.  ^  N.  E.  ^  of  said  section  20  to 
Chambers  and  Benedict,  as  above  stated;  that  by  deed  dated 
November  10,  1845,  Norman  B.  Judd  had  deeded  the  other  undi- 


PARTITION.  181 

vided  ^  of  said  80  acres  to  said  Cook  ;  that  in  November,  1845, 
Chaiubers  and  Benedict  each  owed  more  than  $1,000  to  said 
Cook  and  in  consideration  of  such  indebtedness  executed  an 
affrconieiit  in  writing  for  the  conveyance  to  him  of  their  undi- 
vided -}j  o(  said  80  acres;  tiiut  the  consideration  therefor  was  the 
pro[)erty  of  said  sums  due  from  them,  respectively ;  that  said 
contract  had  been  lost  or  mislaid,  and  had  never  been  assigned 
by  Cook;  that  neither  Chambers  nor  Benedict,  nor  either  of 
them,  had  ever  conveyed  any  part  of  said  land  to  said  Cook,  or 
to  any  other  person.  The  bill  recites  the  sale  for  taxes  in  1842; 
the  tax  deed  to  Cook  in  1844;  the  exercise  of  control  over  the 
80  acres  by  Cook  from  1843  to  1857  ;  the  payment  of  taxes  by 
him  from  1842  to  1854;  the  sale  for  taxes  in  1856  ;  the  tax  deed 
to  Wilson  in  1859;  the  deed  from  Cook  to  Finnell  and  Winter- 
smith  in  1857  ;  the  deeds  in  1865  from  Wilson  to  Finnell  of  the 
S.  40  acres,  and  to  Wintersmith  of  the  N.  40  acres  ;  the  parti- 
tion deeds  in  1869  from  the  grantees  of  Wintersmith  to  Finnell 
of  the  S.  40  acres,  and  from  the  latter  to  the  former  of  the  N. 
40  acres.  The  bill  alleges  that  Chambers  and  Benedict  died  in- 
testate and  unmarried,  and  without  children,  and  had  been  dead 
many  years,  and  prays  for  a  decree  compelling  the  defendants 
to  convey  the  S.  ^  «f  s^^'^i  E.  ^  to  Finnell,  and  the  N.  ^  thereof 
to  Montgomery  and  Taylor,  and  in  default  thereof  that  a  master 
make  such  conveyance,  and  for  summons.  Appended  to  the 
bill  was  an  affidavit  that  the  names  of  the  heirs  and  devisees  of 
Asa  W.  Chaml)ers,  deceased,  and  of  the  heirs  and  devisees  of 
Sheldon  Benedict,  deceased,  were  unknown.  Summons  dated 
August  28,  1869,  was  issued  to  Cook  County  against  the  un- 
known heirs  and  devisees  or  Asa  W.  Chambers,  deceased,  and 
the  unknown  heirs  and  devisees  of  Sheldon  Benedict,  deceased, 
returnable  on  the  first  Monday  of  October,  1869,  and  was  re- 
turned, "Not  found."  Proof  of  publication  of  notice  to  said 
defendants  was  filed  November  29,  1869,  the  publisher's  certifi- 
cate showing  publication  for  four  successive  weeks, —  four  times 
in  a  certain  newspaper,  —  first  on  August  28,  and  the  last  on 
September  18,  1869.  On  November  29,  1869,  the  court  entered 
an  order  finding  that  it  appeared  from  proof  filed  that  publica- 
tion had  been  made  in  the  Chicago  Evening  Post,  a  newspaper 
published  in  Chicago,  containing  notice  of  the  pendency  of  said 
suit,  etc.,  "  the  first  of  which  publications  was  more  than  sixty 
days  before  the  commencement  of  this  term  of  court,"  etc.,  and 
oiderinsr  that  default  be  taken  aorainst  the  defendants,  and  that 
the  allegations  of  the  bill  be  taken  as  confessed  by  them,  and 
that  the  cause  be  referred  to  Ira  Scott,  master  in  chancery,  to 
take  proofs  and  report.     On  Monday,  May  21,  1870,  the  master 


182  JOINT   ESTATES. 

made  his  report,  returning  tlicrewith  the  deeds  named  in  the 
bill,  or  certified  copies  thereof,  and  also  the  deposition  of  Cook, 
wherein  ho  testified  that  Chambers  and  Benedict  were  dead,  and 
had  been  dead  for  fifteen  or  twenty  years;  that  neither  of  them 
was  ever  married;  that  he  had  been  unable  to  find  any  of  their 
relatives  living;  that  said  Cook  had  reacquired  the  title  to  paid 
eighty  acres  from  said  Chambers  and  Benedict  by  contract  or 
deed  which  he  has  been  unable  to  find,  and  that  no  one  ever 
claimed  said  land  since  its  purchase  by  Cook  from  Jiuld  and 
Chambers  and  Benedict,  except  Cook's  grantees,  and  tliojie  claim- 
ing under  them.  On  May  21,  1870,  the  court  rendercMl  a  decree 
wherein,  after  reciting  that  the  cause  came  on  to  be  heard  upon 
the  bill,  exhibits,  and  testimony,  and  that  the  defendants,  the 
unknown  heirs  and  devisees  of  Asa  W.  Chambers,  deceased,  and 
the  unknown  heirs  and  devisees  of  Sheldon  Benedict,  deceased, 
*'  although  duly  notified  and  warned,"  failed  to  api)ear  and  plead, 
it  was  ordered  that  the  bill  be  taken  for  confessed ;  and  after 
finding  that  the  material  averments  thereof  were  fully  proven  it 
was  further  decreed  that  the  complainants  therein  be  quieted  in 
their  title  to  and  possession  of  said  eighty  acres,  and  that  the 
defendants,  '*  and  all  others,"  be  forever  enjoined  from  setting 
up  any  claim  or  title  to  said  premises,  or  any  part  thereof,  ad- 
verse to  the  claim  and  title  of  the  respective  complainants  there- 
in, and  that  the  defendants,  within  five  days,  executed  a  deed  to 
complainants  Montgomery  and  Taylor  conveying  to  them  said  N. 
^  and  a  deed  to  the  complainant,  Finnell,  conveying  to  him  said 
S.  ^,  etc.,  and  in  default  of  their  so  doing,  that  said  master  make 
said  conveyances  for  said  defendants. 

In  pursuance  of  said  decree,  Ira  Scott,  master  of  said  court, 
executed  a  deed  dated  June  14,  1870,  and  recorded  June  23, 
1870,  conveying  the  S.  ^  of  the  E.  i  of  the  N.  E.  ^  of  said  sec- 
tion 20,  etc.,  to  said  John  W.  Finnell,  and  also,  by  deed  of  same 
date,  and  recorded  on  June  23,  1870,  conv(?yed  the  N.  -^  of  said  E. 
"5,  etc.,  to  said  Montgomery  and  Taylor.  On  February  23,  1871, 
Finnell  sold  said  S.  40  acres  to  George  G.  Street  for  $12,000,  and 
conveyed  the  same  to  him  by  warranty  deed  of  that  date,  which 
was  recorded  before  October  9,  1871.  Street  paid  $3,000  in 
cash  upon  said  purchase,  and  to  secure  the  remaining  $9,000  of 
the  purchase  money  executed  to  Samuel  M.  Moore,  as  trustee, 
four  trust  deeds,  dated  February  21,  1871,  and  recorded  March 
23,  1871,  —  on  one  of  the  N.  E.  10  acres  of  said  S.  40  acres,  to 
secure  a  note  for  $2,250,  payable  in  one  year;  one  on  the  N.  W. 
10 acres  thereof,  to  secure  a  note  for  $1,250  payable  in  two  years; 
one  on  the  S.  E.  10  acres,  to  secure  a  note  for  $2,250,  payable  in 
three  years  ;  and  one  on  the  S.  W.  10  acres,  to  secure  three  notes, 


PARTITION.  183 

each  for  $750,  payable,  respectively,  in  one,  two,  and  three 
years,  —  all  said  notes  signed  by  said  Street,  and  payable  to  the 
order  of  said  Finncll.  On  March  1,  1871,  Street  sold  said  40 
acres  to  William  Hansbrough  for  $18,000  and  conveyed  the 
same  to  him  by  a  warranty  deed  dated  March  1,  1871,  and 
recorded  March  31,  1871,  subject  to  said  incumbrance  of  $9,000, 
which  said  Hansbrough  assumed  and  agreed  to  pay.  Hans- 
brough  bought  the  property  for  himself  iind  George  W.  Burton, 
and  by  a  warranty  deed  dated  January  30,  1872,  and  recorded 
January  8,  1873,  conveyed  the  same,  for  an  express  considera- 
tion of  $18,000,  to  said  Burton,  who  also  assumed  the  payment 
of  said  incumbrances.  On  October  3,  1871,  before  the  maturity 
of  said  notes,  Charles  G.  Wallace  bought  all  of  said  notes  and 
trust  deeds  from  said  Finnell,  and  paid  therefor  $8,600  in  money. 
Burton  paid  the  two  notes  payable  inoneyear,  —  one  for  $2,250, 
and  one  for  $750,  —  and  the  said  N.  E.  10  acres  have  been  re- 
leased from  the  lien  of  the  trust  deed  thereon.  In  1877,  Burton 
executed  upon  the  40  acres  a  mortgage,  which,  in  bankruptcy, 
was  assigned  in  1878  to  the  Louisville  Banking  Company,  one  of 
the  appellants  herein.  In  1878,  Burton  became  bankrupt,  and 
an  assignee  of  his  estate  was  appointed.  During  this  litigation 
the  property  had  been  sold  for  taxes,  and  John  J.  Mitchell,  also 
one  of  the  appellants,  holds  tax  deeds  upon  the  property.  For 
the  present  we  postpone  the  consideration  of  all  questions  as 
to  bankruptcy  of  Burton,  and  as  to  the  rights  af  the  Louisville 
Banking  Company,  and  of  Mitchell.  Wallace,  one  of  the  de- 
fendants below,  and  one  of  the  appellants  here,  is  the  owner  of 
the  unpaid  notes  secured  by  three  of  said  trust  deeds,  together 
with  the  interest  thereon.  He  claims  that  he  bought  the  same 
in  good  faith,  relying  upon  the  validity  of  said  decree  of  May 
21,  1870,  and  of  the  master's  deed  made  in  pursuance  thereof. 
Burton  and  Hansbrough,  defendants  below  and  appellants  here, 
claim  that  they  and  their  grantor.  Street,  bought  the  40  acres  in 
good  faith,  relying  upon  said  decree,  and  that  they  are  bona  fide 
purchasers  for  value,  without  notice  of  the  claim  of  complainants, 
or  of  their  grantor,  Chambers. 

We  are  thus  brcnight  to  the  consideration  of  the  question 
whether  parties  purchasing  in  good  faith,  and  in  reliance  u[)f)n 
the  validity  of  such  a  proceeding  against  unknown  heirs  and  de- 
visees as  is  above  set  forth,  are  entitled  to  be  protected  in  their 
purchases.  In  support  of  their  contention  that  the  superior 
court  of  Chicago  acquired  jurisdiction  in  the  proceeding  of  1869 
over  the  unknown  heirs  and  devisees  of  Asa  W.  Chatnbers,  de- 
ceased, counsel  for  a[)pellants  assert,  in  the  first  place,  that  the 
Chambers  from  whom  the  complainants  derived  their  title  was  an 


184  JOINT     ESTATES. 

impostor,  and  is  not  sufficiently  identified  by  the  evidence  as  being 
the  same  Asa  W.  Chambers  who  lived  in  Chicago  in  1836  to 
overcome  the  presumption  of  death  arising  from  absence  for 
several  periods  of  seven  years  each,  and  to  overcome  the  judicial 
finding  of  the  fact  of  his  death  made  in  18(39  and  1870,  as 
above  set  forth.  Undoubtedly,  there  are  soiuo  circumstances 
which  leave  the  mind  in  doubt  upon  this  question  of  identity. 
John  C.  Haines  and  Fernando  Jones  swear  that  they  knew 
Chambers  and  Benedict  well  when  the  latter  were  in  Chicago  in 
183G  and  1838;  that  Chambers  was  a  young  man,  not  more  than 
25  years  old,  and  was  an  unmarried  man  ;  that  he  had  no  family, 
and  slept  in  his  store,  etc.  The  grantor  of  complainants  was  in 
Chicago  in  1872  or  1873,  and  gave  his  deposition  in  that  city  in 
September,  1874.  He  seems  to  have  kept  aloof  from  all  of  the 
old  citizens,  except  one,  who  knew  the  Chambers  of  1836  and 
1838.  His  board,  while  he  was  here,  was  paid  by  the  real  estate 
agent  already  mentioned.  He  states  that  he  was  engaged  at  that 
time  in  peddling  bluing  for  washing  purposes.  He  says  that 
while  he  lived  in  Chicago  he  had  a  wife  and  children,  and  that 
one  of  his  daughters  was  married  in  Danville  before  he  went  to 
Texas.  Three  or  four  Witnesses  swear  that  the  reputation  of  the 
Chambers  who  lived  in  Texas  in  1849  and  1862,  for  truth  and 
veracity,  was  bad,  and  that  they  would  not  believe  him  under 
oath.  Several  testify  that  Chambers,  of  Texas,  signed  his  name, 
"  Asa  Chambers,"  and  was  not  known  as  Asa  W.  Chambers. 
There  are  many  inconsistencies  in  the  account  which  the  grantor 
of  complainants  give  of  himself,  and  of  the  transaction  of  which 
he  speaks.  If  this  matter  depended  upon  his  testimony  alone, 
its  inherent  improbability,  and  its  contradiction  by  Haines 
and  Jones,  would  leave  his  identity  with  the  original  grantee 
of  Cook  unproven.  But  Haines  and  Jones  did  not  see  him 
when  he  was  in  Chicago  in  1872  and  1874.  On  the  other 
hand,  Mark  Beaubien,  an  old  settler  in  Cook  County,  swears  that 
he  knew  the  Chambers  who  was  here  in  1836,  and  that  the 
Chambers  here  in  1874  was  the  same  man.  The  Chambers  who 
testified  in  this  case  boarded  with  Beaubien  in  1874,  and  the 
latter  swears  that  he  recognized  him  as  the  man  who  had  for- 
merly boarded  with  him  in  1836  or  1837.  While  there  is  some 
evidence  tending  to  show  that  Beaubien  was  a  very  credulous 
man,  there  is  none  that  successfully  impeaches  his  truthfulness. 
We  think,  upon  the  whole,  that  his  testimony  must  be  held  to 
determine  the  question  of  identity  in  favor  of  the  position  taken 
by  the  complainants  upon  this  subject. 

But  appellants  contend,  in  the  second  place,  that,  even  if  the 
grantor  of  complainants  be  identified  as  the  grantee  of  Cook,  yet 


PARTITION.  185 

the  rights  of  Chambers  were  cut  off,  as  against  them,  by  the 
decree  of  1870.  Their  position  is  that  the  superior  court  of 
Chicago  was  a  court  of  general  jurisdiction;  that  it  had  juris- 
diction of  the  subject-matter;  that  absence  from  the  domicile 
for  a  i)eriod  of  seven  years,  without  being  heard  from,  creates  a 
presumption  of  death;  that  Chambers  had  been  absent,  and  not 
heard  from,  for  31  years,  when  the  suit  of  1869  was  begun; 
that  the  court  made  a  decree,  upon  proofs  taken,  finding  him  to 
be  dead;  that  proper  publication  was  made  as  to  his  heirs;  that 
comphiinants  were  hona  fide  purchasers  for  vahie  without  notice, 
and  were  not  bound  to  look  beyond  the  decree,  when  executed  by 
a  master's  deed,  inasmuch  as  the  facts  necessary  to  give  juris- 
diction appeared  upon  the  face  of  the  proceedings;  that  the 
decree  cannot  be  attacked  collaterally,  etc.  There  is  force  in 
these  contentions, where  applied  to  the  unknown  heirs  and  devisees 
of  Sheldon  Benedict,  deceased,  as  will  be  seen  hereafter,  but 
they  have  no  ap[)lication  to  Chambers.  According  to  the  testi- 
mony of  Beaubien,  as  it  appears  in  this  record.  Chambers  was 
alive  when  the  suit  was  begun  in  1869,  and  when  the  decree  of 
1870  was  rendered,  and  when  the  present  bill  was  filed,  in  1873, 
He  was  not  a  party  to  the  suit  of  1869.  The  persons  made 
parties  as  his  unknown  heirs  and  devisees  were  not  then  in  exist- 
ence. There  were  no  such  persons.  The  court  had  no  juris- 
diction over  him,  and  the  decree  was  absolutely  void  as  to  his 
one-fourth  inteiest  obtained  from  Cook  in  183d.  In  authorizing 
the  heirs  of  a  deceased  person,  who  has  been  interested  in  the 
subject-matter,  to  be  made  parties  under  the  name  of  "  unknown 
heirs,"  when  their  names  are  unknown,  the  statute  presupposes 
that  the  death  of  such  persons  is  an  established  fact.  It  was 
never  designed  to  cut  off  the  known  rights  of  such  a  person 
while  in  life,  even  as  against  innocent  purchasers  for  value.  It 
has  reference  to  deceased  persons,  and  not  to  live  persons.  In 
Thomas  v.  People,  107  111.  517,  where  the  proceeds  of  a  sale  in 
partition  came  to  the  hands  of  a  master  in  chancery,  and  prior 
thereto  administration  had  been  granted  upon  the  estate  of  one 
of  the  heirs  upon  the  hypothesis  that  he  was  deed,  because  he 
had  been  absent,  and  not  heard  from,  for  more  than  seven  years, 
the  master  paid  to  the  administrator  the  portion  of  the  proceeds 
belonging  to  such  absent  heir.  Afterwards  the  person  supposed 
to  be  dead  turned  out  to  be  alive,  and  it  was  held  that  the  grant 
of  administration,  and  all  acts  done  thereunder,  were  void;  that 
the  probate  court  had  no  jurisdiction  except  over  the  estate  of 
deceased  persons  ;  that  the  money  was  improperly  paid  out ;  and 
that  the  interested  party,  who  had  returned  alive,  was  entitled  to 
recover  back  his  money  from  the  master.     We  think  that  the 


186  JOINT  ESTATES. 

doctrine  of  tho  Thomas  case  is  applicable  to  tlie  case  at  bar,  so 
far  as  Chambers  is  concerned.  We  are  therefore  of  the  opinion 
that  the  decree  of  May  21,  1870,  and  the  master's  deed  of  .June 
14,  1870,  did  not  have  the  effect  of  depriving  Chambers  of  the 
one-fourth  iiitereijt  shown  by  the  records  to  have  been  conveyed 
to  him  in  1836. 

Tho  proceeding  of  1869  must  be  regarded  as  a  proceeding 
against  the  unknown  heirs  and  devisees  of  Sheldon  Benedict, 
alone,  and  tho  question  arises  whether  it  was  vali<l  as  to  them. 
There  is  no  eviclence  in  the  record  that  Benedict  was  alive  when 
that  proceeding  was  instituted,  or  when  the  decree  therein  was 
entered.  He  had  been  absent  from  Cook  County,  and  had  not 
been  heard  from  in  that  county,  for  31  years.  If  he  was  alive 
in  1848,  he  had  not  been  heard  from  in  1869  for  21  years. 
Acting  upon  the  presumption  of  his  death,  and  upon  the 
evidence  of  Cook  that  he  was  dead,  the  decree  of  1870  found 
the  fact  of  his  death  to  be  established.  The  complainants 
have  introduced  no  proof  to  contradict  the  truth  of  such  find- 
ing. In  their  original  bill  filed  in  this  cause  on  July  18,  1873, 
they  alleged  that  Benedict  was  dead,  and  after  filing  the 
ajQBdavit  required  by  the  statute  made  his  unknown  heirs  and 
devisees  parties  defendant.  We  see  no  reason  why  the  court 
did  not  obtain  jurisdiction  over  the  unknown  heirs  and  devisees 
of  Sheldon  Benedict,  deceased,  by  the  proceedings  of  1869,  as 
above  set  foith.  Inasmuch  as  said  heirs  and  devisees  were 
notitied  by  puI)lication  only,  they  hud  a  right  to  come  in  at  any 
time  within  three  years  after  the  entry  of  the  decree,  and  open 
it,  and  answer  the  bill.  It  is  true  that  such  a  decree  does  not 
become  final  until  after  the  lapse  of  three  years,  and  that 
parties  purchasing  during  that  time  do  so  subject  to  the  contin- 
gency that  the  decree  may  be  set  aside.  Lyons  v.  Kobbin,  46 
HI.  276;  Bank  v.  Humphreys,  47  111.  227.  But  when  the  three 
years  have  passed,  and  no  steps  have  been  taken  by  the  defend- 
ants to  open  it,  it  has  the  same  effect  as  though  there  had  been 
personal  service.  Caswell  v.  Caswell,  120  III.  377;  11  N.  E. 
Rep.  342.  Although,  in  the  present  case,  Street  and  Hansbrough 
and  Burton  and  Wallace  acquired  their  interests  within  three 
years  after  the  entry  of  the  decree  of  May  21,  1870,  yet  none 
of  the  heirs  or  devisees  of  Benedict  appeared  between  that  date 
and  May  31,  1873,  for  the  purpose  of  opening  the  decree,  and 
answering  the  bill.  The  decree  become  final  on  May  21,  1873,  and 
the  rights  of  said  appellants  became  thereby  fixed,  and  relieved 
of  their  conditional  character.  The  bill  of  complainants  in  this 
case,  not  having  been  filed  until  July  18,  1873, was  not  filed  until 
more  than  three  years  had  passed   not  only  after  tho  entry  of 


PARTITION.  187 

the  decree,  but  after  the  execution  and  recording  of  the 
master's  deed  to  Fiunell.  It  makes  no  difference  that  said  bill 
was  filed  within  less  than  two  months  after  May  21,  1873.  The 
evidence  tends  to  show  that  the  efforts  made  by  the  agent  of  the 
complainants  to  find  Chambers,  and  get  a  conveyance  from  him, 
were  prompted  by  the  beginning  of  the  chancery  suit  in  1869, 
and  by  the  publication  of  the  notice  to  unknown  heirs,  etc. 
Neither  Finnell,  nor  the  above  named  appellants,  who  hold  under 
him,  had  any  notice  whatever  that  Benedict  had  made  a  deed  to 
Chambers  until  the  filing  of  the  original  bill  in  this  cause.  The 
allegations  of  that  bill  made  it  known  on  July  18,  1873,  for  the 
first  time,  that  such  a  deed,  of  which  the  records  give  no  informa- 
tion, had  been  executed  and  lost.  The  first  two  deeds  made  by 
Chambers  to  the  complainants  gave  no  notice  of  the  execution  of 
a  deed  by  Benedict  to  Chambers.  They  both  bear  date  Novem- 
ber 20,  1871.  One  was  recorded  on  January  30,  1872,  and  the 
other  on  February  16,  1872.  By  the  former.  Chambers  con- 
veyed to  Perrv  and  Henderson  "  all  of  the  equal  and  undivided 
one-half  part,'""'  not  of  the  E.  ^  of  the  N.  E.  i,  etc.,  but  "of 
the  N.  E.  one-fourth  of  section  20,"  etc.,  and  omitted  to 
state  in  what  county  and  State  said  N.  E.  ^  was  located. 
By  the  latter.  Chambers  conveyed  to  Perry  and  Henderson 
"  an  undivided  one-half  of  all  the  pieces,  parcels,  or  lots  of  land 
which  I  own,  or  have  any  title  thereto,  in  Cook  County,  or  in 
any  part  of  Illinois,"  but  failed  therein  to  specifically  describe 
any  particular  land.  The  third  deed  made  by  Chambers  to 
Perry  and  Henderson,  which  recites  that  it  is  made  to  correct 
the  mistake  in  the  first  deed  of  omitting  the  words  "  in 
Cook  County,  and  State  of  Illinois,"  bears  date  July  5,  1873; 
and,  although  it  is  referred  to  in  the  original  bill  in  connection 
with  the  other  two  deeds,  it  was  not  recorded  until  September 
9,  1890. 

Which  title  to  the  undivided  one-fourth  interest  conveyed  by 
Cook  to  Benedict  in  1836,  is  the  better  title,  —  that  of  appel- 
lants, derived  from  Finnell  through  his  master's  deed  of  June 
14,  1870,  and  purchased  in  good  faith  for  valuable  considera- 
tion, without  notice  of  any  adverse  interest,  or  that  of  com- 
plainants based  upon  the  lost  deed  of  Benedict  to  Chambers, 
brought  to  light  for  the  first  time  on  July  18,  1873?  The  stat- 
ute provides  that  "  all  deeds,  mortgages,  and  other  instruments 
of  writing  which  are  (required)  authorized  to  be  recorded  shall 
take  effect  and  be  in  force  from  and  after  filing  the  same  for 
record,  and  not  before,  as  to  all  creditors  and  subsequent  pur- 
chasers without  notice;  and  all  such  deeds  and  title  papers  shall 
be  adjudged  void  as  to  all  such  creditors  and  subsequent  purchasers 


188  JOINT    ESTATES. 

without  notice  until  the   same   shall  be   filed  for  record."     If 
Benedict  had  been  alive  in  June,  1873,  and  Fiiinell  had  then  pur- 
chased his  one-fourth  interest  from  him  for  a  valuable  considera- 
tion, and  ii]  good  faitli,  and  without  notice  of  any  [)revious  con- 
veyance thereof,  jiiid  had  recovered  his   deed   on  June  23,  1873, 
FiiHiell  would  certainly  have  held  the  interest  as  against  the  un- 
recoi'ded  and  lost  deed  previously  made  by  Benedict  to  Chambers 
in  1848,  and  not  heard  of  l)y  FinncU   until  June  18,  1873.     Al- 
though the   legal   title    passes    by  the    first  deed,  which  is  not 
recorded,  yet  by  force  of  the  recording  laws  it  is  postponed  in 
favor  of   a  subsequent  deed  to  a  bona  fide  purchaser,  which  is 
recorded.      We  have  held  that  this  rule  applies  as  well  to  bona  fine 
subsequent  purchasers  from  heirs  as  to  purchasers  from  the  an- 
cestor.    In  Kennedy  v.  Northup,  15  111.  148,  we  said:  "  During 
the  lifetime  ot  the  grantor  in  an  unrecorded  deed  the  apparent 
title  is  in  him  ;  and  he  who  purchases  in  good  faith  that  apparent 
title,  it   is  conceded   on   all  hands,  is  protected  by  the  statute. 
After  the  death  of  such  original  grantor  the  apparent  legal  title  is 
in  the  heir,  and  the  policy  of  the  law,  which  is  to  make  potent  all 
legal  titles  to   land,  so  far  as  practicable,  that  strangers  may 
safely  purchase,  equally  requires  that  the  bona  fide  purchaser 
from  the  heir  should  be  protected."     If,  therefore,  Finnell  had 
purchased  said  interest  in  good  faith  from  the  heirs  of  Benedict  in 
June,  1873,  and  had  recorded  his  deed  in  June,  1873,  he  would 
have    been    protected     against     the     unrecorded     deed     made 
in  1848.     But,    wheu    such    heirs     are    unknown,   why  should 
not    a    subsequent    purchaser    who    acquires    their  interest,   in 
good  faith  and  without  notice,  through  a  statutory  proceeding 
against  unknown   heirs,   be   equally  protected  against    the  un- 
recorded deed?     A  deed  from    the    heirs    themselves  no  more 
effectually  disposes  of  their  interests  than  a  deed  executed  for 
them   by  a   master  in   chancery,  under  the   orders    of    a  court 
which  has  acquired    jurisdiction  over  them.     It  has  been  held 
that  the  subsequent  purchasers  who  are  protected  against  un- 
recorded conveyances  include  purchasers  at  judicial  sales  as  well 
as  other  sales.     Webber  v.  Clark,  136  III.  256  ;  26  N.  E.  Rep. 
360;   and  32  N.  E.  Rep.   748.     In  principle  and  reason,  these 
appellants,  as  purchasers  from  the  grantee  in  the  master's  deed, 
executed  under  a  judicial  proceeding,  occupy  a  position  some- 
what similar  to  that  of  the  purchaser  of  a  judicial  sale.      Sec- 
tion   7    of    the    chancery    act    is  as    follows:    "  In  all  suits  in 
chancery,  and    suits    to    obtain    title    to  lands,  in  any  of    the 
courts     of      this     State,     if      there      be      persons     interested 
in     the     same     whose     names      are     unknown,     it     shall     be 
lawful     to     make     such     persons     parties    to     such    suits    or 


PARTITION.  189 

proceedings  by  the  name  and  description  of  unknown  owners, 
or  imknovvn  heirs  or  devisees,  of  any  deceased  person  who  may 
have  been  interested  in  the  subject-matter  of  the  suit  previous 
to  his  or  her  death.  But  in  all  such  cases  an  affidavit  shall  be 
filed  by  the  party  desiring  to  make  any  unknown  person  a  party, 
stating  that  the  names  of  such  persons  are  unknown  ;  the  pro- 
cess shall  be  issued  against  all  parties  of  the  name  and  descrip- 
tion given  as  aforesaid;  and  notice  given  by  publication,  as  re- 
quired by  this  act,  shall  bo  sufficient  to  authorize  the  court  to 
hear  and  determine  the  suit  as  though  all  parties  had  been  sued 
by  their  proper  names."  Starr  &  C.  Ann.  St.,  p.  395.  Section 
43  of  the  same  act  is  as  follows:  "All  decrees,  orders,  judg- 
ments, and  proceedings  made  or  had  with  respect  to  unknown 
persons  shall  have  the  same  effect,  and  be  as  binding  and  con- 
clusive upon  them,  as  though  such  suit  or  proceeding  had  been 
instituted  against  them  by  their  proper  names."  Id.,  p.  412. 
The  statute  requires  that  the  deceased  person  shall  be  one  who 
was  interested  in  the  subject-matter  of  the  suit  previous  to  his 
death.  Pile  v.  McBralney,  15  III.  314.  The  records  showed, 
when  the  suit  of  1869  was  begun,  that  Benedict  was  the  only 
person  who  had  been  interested  in  the  one  undivided  fourth 
conveyed  to  him  in  1836,  except  those  holding  tax  titles. 
There  was  nothing  to  inform  the  complainants  in  the  suit  that 
Chambers  had  any  interest  in  such  undivided  one-fourth,  or  that 
there  were  unknown  persons  interested  therein,  other  than  Bene- 
dict's heirs.  In  Pile  v.  McBratney,  supra,  the  nature  and  eftect 
of  a  proceeding  precisely  like  the  suit  of  1869  were  fully  dis- 
cussed, and  it  was  there  said  ;  "  The  court  having  acquired  juris- 
diction of  the  case,  and  passed  upon  the  rights  of  the  parties, 
the  decree  was  binding  on  the  heirs  of  Mastin.  The  deed  of  the 
commissioners  transferred  all  their  interest  in  the  land."  When 
all  persons  known  to  have  any  interest  in  the  land,  or  shown  by 
the  records  to  have  any  interest,  are  made  parties,  the  proceeding 
would  be  useless,  if,  after  it  has  become  final,  persons  claiming  to 
hold  secret  interests,  unrecorded  and  unsuspected,  even,  can 
come  in,  and  set  the  decree  aside.  Such  a  doctrine  would  open 
wide  the  door  to  fraud  and  perjury.  Speculators  would  be 
tempted  to  swear  to  lost  deeds,  or  other  instruments,  as  having 
been  executed  to  them  by  parties  to  such  proceedings,  for  the 
express  purpose  of  declaring  the  decree  invalid  for  want  of  juris- 
diction over  themselves.  Thus  the  very  object  of  the  statute  would 
be  defeated.  While  the  decree  of  May  21,  1870,  was  invalid,  so 
far  as  it  operated  to  deprive  Chambers  of  the  one-fourth  interest 
shown  by  the  records  to  have  been  conveyed  to  him  in  1836, 
we   cannot  regard  it  as  invalid  so  far  as  it  affected  the  secret 


190  JOINT    ESTATES. 

interest  claimed  to  liave  been  obLaiiicd  by  liiin  through  the  lost 
deed  of  1848.  The  apparent  title  to  the  latter  interest  stood  in 
Benedict,  or  his  heirs.  "  Where  a  deed  is  not  recorded  the  title 
is  apparently  still  in  the  grantor,  and  the  law  authorizes  pur- 
chasers who  are  ignorant  of  the  conveyance  to  deal  with  him  as 
the  real  owner.  In  case  of  his  death  the  heir  becomes  tin;  ap- 
parent owner  of  the  legal  title,  and  it  is  equally  as  important, 
and  equally  as  just,  that  the  public  may  be  allowed  to  deal  with 
him  as  the  real  owner."  Kennedy  v.  Northup,  supra.  When 
the  facts  authorize  a  statutory  proceeding  against  the  unknown 
heirs  holding  the  apparent  title,  the  prosecution  of  such 
a  proceeding  to  the  end,  and  the  securcment  of  a  title 
thereunder,  amoutit  to  a  dealing  with  such  heirs  as  the  real  own- 
ers, just  as  much  as  would  be  a  purchase  from  heirs  whose 
names  are  known.  The  bill  of  1869  was  to  a  large  extent  a  bill 
for  the  specific  performance  of  a  contract  to  convey  land.  Cook 
and  his  grantees  alleged  therein  that  Chambers  and  Benedict 
executed  a  written  agteement  in  1843  to  convey  their  interests 
in  the  80  acres  to  Cook.  The  court  found  that  allegation  to  be 
true,  and  ordered  the  defendants  to  make  deeds  to  carry  out  the 
agreement,  or,  upon  their  default,  that  the  master  do  so.  Here 
was  a  judicial  finding  that  Cook  acquired  an  interest  in  Benedict's 
one-fourth  before  the  deed  of  1848  was  made.  The  appellants, 
purchasing  in  good  faith  and  without  notice,  had  a  right  to  rely 
upon  that  decree,  and  the  deed  thereunder,  as  passing  Benedict's 
title.  The  court  had  jurisdiction  of  the  parties,  — the  unknown 
heirs  of  Benedict,  deceased,  —  and  of  the  subject-matter,  —  the 
specific  performance  of  a  contract  to  convey  land. 

Counsel  for  appellees  charge  that  the  proceeding  of  1869  was 
a  fraud  perpetrated  upon  the  court  by  Cook,  and  that  no  such 
contract  of  sale  as  is  therein  set  up  ever  existed.  The  proof 
does  not  sustain  this  charge.  Chambers,  it  is  true,  swears  that 
he  owed  Cook  nothing  when  he  left  here,  in  1838,  and  that  he 
thinks  Benedict  owed  him  nothing.  Cook,  however,  swears  to 
the  contrary  in  the  suit  of  1869,  and  the  court  found  his  evi- 
dence to  be  true ;  and,  not  only  so,  but  he  swears  to  the 
same  thing  in  his  testimony  taken  in  this  case  in  1882. 
But,  if  it  is  true  that  Cook  was  guilty  of  the  fraud  charged 
against  him,  it  was  not  such  a  fraud  as  goes  to  the  juris- 
diction of  the  court  rendering  the  decree  of  1870,  and  the'c- 
fore  is  unavailable  in  a  collateral  attack  upon  the  proceeding  of 
1869,  as  against  innocent  purchasers  from  the  grantee  in  the 
master's  deed.  There  are  two  kinds  of  fraud,  as  applied  to  this 
subject,  —  fraud  in  obtaining  a  decree  by  false  evidence,  and 
fraud  which  gives  si  court  colorable  jurisdiction  over  the  defend- 


PARTITION.  191 

ant's  person.  In  case  of  a  fiau«l  of  llio  previous  kind,  a  decree 
cannot  be  impeached  in  a  s('i)arato  and  independent  proceedings, 
tli(»n»li  it  is  otherwise  in  the  case  of  a  fraud  of  the  hitter  kind. 
Caswell  V.  Caswell,  120  111.  377  ;   11  N.  K.  Kip.  342. 

Counsel  for  a[)pellees  contended  that  the  contract  set  up  in  tiic 
bill  of  1869  was  a  joint  contract  for  the  conveyance  of  an  undi- 
vided one-half  of  the  80  acres  by  Chambers  and  Benedict,  to- 
gether, and  that,  where  jurisdiction  over  Chambers  failed,  there 
was  no  jurisdiction  to  enforce  the  contract  against  Benedict  alone 
for  the  conveyance  of  his  one-fourth  interest.  We  do  not  con- 
cur in  this  position.  The  deed  made  by  Cook  in  1836  conveyed 
to  Benedict  one-fourth,  and  to  Chambers  one-fourth,  and  each 
coultl  ])erform  the  contract  as  to  his  own  interest  only,  and  not 
as  to  the  interest  of  the  other.  Hence,  we  see  no  reason 
why  the  master's  deed  to  Finnell  did  not  pass  Benedict's 
one-fourth,  though  it  failed  to  pass  the  one-fourth  belonging 
to  Chambers.  Freeman,  in  his  work  on  Contenaucy  and 
Partition  (section  209),  says:  "An  agreement  to  convey, 
entered  into  by  several  cotenants,  by  which  they  stipulate 
that  they  will  give  a  good  and  sufficient  warranty  deed,  etc., 
does  not  require  either  to  warrant  the  title  of  the  others.  It  is 
complied  wi(h  if  each  makes  a  separate  deed  of  his  moiety,  con- 
taining the  stipulated  covenant,  or  if  all  join  in  a  deed  in  which 
each  grantor  warrants  his  share,  but  not  that  of  his  cograntor." 
Coe  V.  Warahan,  8  Gray,  198.  Viewing  the  contiact  as  one  be- 
tween Benedict,  vendor,  and  Cook,  vendee,  foi*  the  sale  of  one- 
fourth  of  the  land,  and  viewing  the  bill  of  18(59  as  a  bill  brouo;ht 
by  the  vendee  against  the  vendor  for  the  specific  [)erformance  of 
a  contract  made  in  1843,  we  cannot  see  how  the  proceeding  can 
be  void,  as  to  the  vendor's  interest,  merely  because  a  subsequent 
grantee  of  tiie  vendor,  to  whom  the  latter  conveyed  in  1848, 
was  not  made  a  party,  it  being  true  that  the  original  vendee 
filing  the  bill  knew  nothing  about  the  conveyance  to  such  second 
vendee.  The  bill  alleged  that  Benedict  had  not  conveyed  any 
part  of  his  interest  in  said  land  to  any  person,  and  the  decree 
found  that  allegation  to  be  true.  The  appellants,  as  bona  fide 
purchaseis  from  the  master's  grantee,  had  a  right  to  rely  upon 
the  correctness  of  the  finding.  In  case  of  a  common  bill  for  the 
specific  performance  of  a  contract  of  sale  of  real  estate,  the  only 
proper  ])arties,  in  general,  are  the  parties  to  the  contract  itself. 
Story  Eq.  PI.,  §  226b  ;  Gibl)s  v.  Blakewell,  37  III.  191,  "  In  a 
case  before  Shadwell,  V.  C,  where  the  vendor  sold  the  same 
property  twice  over,  and  the  bill  was  brought  by  the  first  pur- 
chaser against  the  vendor  and  the  second  purchaser,  it  was 
dismissed,  without  costs,  as  against  the  latter,  though  specific 


192  JOINT    ESTATES. 

performjince  wms  decree  as  ii<riiinst  llic  original  contractor.  This 
was  affirmeil  l)V  Lord  Lvnilhiirst.  *  *  *  Cutts  v.  Thodey, 
1  Colly.  223."'    Fry  Spec.  Perf.  (3(1  Ed.),  §  144. 

Counsel  for  appellees  contend  th:it  all  questions  as  to  the 
chancery  suit  of  18()9  are  res  ailjudicata^  under  the  former  de- 
cisions of  this  court  in.ule  in  this  cause.  We  do  not  think  that 
such  is  the  effect  of  said  decisions.  The  case  was  tirst  tried 
before  the  superior  court  of  Cook  County,  in  1883.  Upon  the 
hearing  then  had,  the  superior  court  dismissed  the  bill  of  the 
complainants  for  want  of  equity.  An  appeal  was  taken  to  this 
court,  and  in  an  opinion  tiled  on  Se[)tember  27,  1884,  we  reversed 
said  decree  of  dismissal,  and  remanded  the  cause  generally, 
without  directions.  Ill  III.  138.  The  case  was  again  tried 
before  the  superior  court  in  May,  1887,  and  a  decree  was  entered 
by  that  court  on  August  2,  1887,  again  dismissing  the  hill  of 
complainants  for  want  of  equity.  A  second  a[)peal  was  taken  to 
this  court,  and  in  an  opinion  tiled  November  15, 1888,  we  reversed 
the  second  decree  of  dismissal,  and  again  remanded  the  cause, 
without  directions.  12(i  III.  599  ;  18  N.  PI  Kep.  (553.  An  exa?n- 
inatioQ  of  the  opinions  of  1884  and  1888  will  show  that  there 
was  no  discussion  in  regard  to  the  proceeding  of  18(>9,  and  not 
even  a  reference  to  it.  The  questions  of  hiw  and  the  ques- 
tions of  fact  there  discussed  were  other  than  those  which 
relate  to  the  suit  begun  in  18(59,  and  the  decree  therein 
entered,  and  the  master's  deed  executed  in  pursuance  thereof. 
When  an  opinion  of  this  court  directs  the  decree  of  the 
circuit  court  to  be  reversed,  and  the  cause  to  l)e  remanded 
without  directions,  what  is  said  in  such  oi)inion  in  regard  to  the 
weight  of  evidence  must  be  understood  as  applying  only  to  the 
facts  disclosed  in  the  record  then  under  consideration,  and  only 
the  legal  principles  therein  announced  are  binding  upon  the  in- 
ferior court.  Shinn  v.  Shinn,  15  111.  App.  141.  In  suchcaseit 
by  no  means  follows  that  other  facts  may  not  be  proved  within 
the  principles  announced,  or  not  inconsistent  therewith,  or  that 
amendments  may  not  be  made  which  obviate  objections  to 
granting  the  relief  sought,  or  to  the  allowance  of  a  defense 
interposed.  Cable  v.  Ellis,  120  III.  136;  11  N.  E.  Rep.  188; 
Washburn  &  M.  Manuf'g  Co.  v.  Chicago,  O.  W.  F.  Co.,  1 19  III. 
30;  6  N.  E.  Rep.  191;  Green  v.  City  of  Springtield,  130  111. 
515  ;  22  N.  E.  Rep.  602.  It  is  true  that  some  reference  was 
made  to  the  suit  of  1869  in  the  original  pleadings.  But  since 
the  cause  was  last  remanded  new  pleadings  have  been  filed,  and 
the  old  pleadings  have  been  amended  by  both  sides,  and  new 
and  more  extended  averments  have  been  therein  made,  as  to 
said  suit.     It  appears  clearly  from   the  evidence  of  three  wit- 


PARTITION.  193 

ne8ses,  Finnell,  Brownin2^,  and  Jones,  and  from  former  briefs 
of  counsel,  as  testified  to  by  the  counsel  for  appellees,  that  no 
proper  and  legitimate  evidence  as  to  said  suit  was  or  couUl  have 
been  introduced  upon  the  hearing  of  1883  and  1887.  Neither 
party  then  had  an  abstract  of  title,  made  in  the  ordinary  course 
of  business  before  the  destruction  of  the  records  in  Cook  County 
by  the  great  fire  of  October,  1871,  which  showed  fully  all  the 
proceedings  in  said  suit.  In  1887  the  legislature  passed  an  act 
amending  what  is  known  as  the  "  Rurnt  Records  Act."  Said 
amendatory  act  went  into  force  on  July  1,  1887,  and  it  was  not 
until  after  it  went  into  force  that  the  defendants  were  able  to 
introduce  a  letter-press  copy,  and  extracts  and  minutes  from  the 
destroyed  records  in  the  possession  of  abstract  makers,  showing 
the  return  of  the  summons,  and  the  publication  of  notice  against 
the  unknown  owners,  and  other  facts  in  said  suit  of  1869. 
Without  the  evidence  made  competent  by  the  act  of  1887,  there 
was  no  way  of  proving  that  the  court  acquired  jurisdiction  in 
said  suit  over  the  mi  known  heirs  of  Benedict.  In  addition  to 
this  the  complainants,  Perry  and  Henderson,  upon  the  rein- 
statement of  the  cause  in  the  lower  court  after  the  reversal  of 
1888,  not  only  filed  in  May,  1889,  a  supplemental  bill  referring 
to  the  previous  pleadings  in  the  cause,  and  making  new  parties, 
but  as  late  as  November  20,  1880,  they  filed  an  amended  sup- 
plemental bill,  attacking  the  validity  of  the  jiroceeding  of  1869 
upon  specific  grounds,  and  setting  up  reasons  why  they  entered 
no  motion  therein  during  the  three  years  after  the  rendition  of 
the  decree  of  May,  1870,  and  also  giving  reasons  vviiy  the  de- 
fendant should  not  be  allowed  to  rely  upon  the  same  for  protec- 
tion to  themselves  as  bona  fide  purchasers.  Answers  were  filed 
by  the  defendants  setting  n\)  their  reliance  upon  said  suit.  The 
amended  supplemental  bill  of  November  20,  1890,  and  the  answer 
thereto,  made  a  direct  issue  upon  the  validity  of  the  proceeding 
of  1869  ;  and  new  evidence,  never  before  brought  forward,  was 
introduced  in  support  of  this  issue.  Having  filed  said  amended 
supplemental  bill,  the  appellees  are  estopped  from  claiming 
that  the  issue  thereby  tendered  cannot  now  be  considered.  For 
the  reasons  hereinbefore  set  forth,  we  ai'e  of  the  opinion  that 
the  appellants  holding  under  Finnell,  the  grantee  in  said  mas- 
ter's deed,  have  obtained  good  title  to  Benedict's  one-fourth 
interest,  as  against  Chambers,  the  grantee  in  the  unrecorded 
deed  of  1848.  It  follows  that  the  complainants  were  only 
entitled  to  be  regarded  as  owners  of  an  undivided  one-fourth 
part  of  said  south  40  acres,  and  therefore  the  decree  of  the 
court  below,  holding  them  to  be  the  owners  of  an  undivided 
one-half  part  thereof,  is  erroneous. 

13 


194  JOINT    ESTATES. 

The  other  questions  in  the  case  have  reference  to  the  rights  of 
the  defendants,  as  among  themselves,  in  the  remaining  threo- 
fourths  of  the  tract,  after  awarding  one-fourth  thereof  to  Perry 
and  Henderson. 

As  to  the  Wallace  notes  and  trust  deeds,  Wallace  has  filed  a 
cross  bill  asking  for  a  foreclosure  of  the  incumbrances  held  by 
him.  The  court  below  found  that  the  legal  title  to  the  one-half 
not  belonging  to  the  complainants  was  vested  in  the  Louisville 
Banking  Company  in  trust  for  Burton,  as  hereinafter  ex[)lained, 
and  that  as  one-half  of  the  $12,000  of  purchase  money  agreed 
to  be  paid  by  Street  to  Finnell  had  been  paid,  as  above  stated, 
and  the  other  half,  with  interest  thereon,  was  represented 
by  the  notes  specified  in  the  cross  bills,  and  owned  by  Wallace, 
and  as  Finnell  conveyed  the  whole  40  acres  to  Street  with 
full  covenants  of  warranty,  but  in  fact  thereby  conveyed  the 
title  to  only  one-half  of  the  said  property,  therefore  said 
Wallace  could  not  enforce  his  trust  deeds  against  the  undi- 
vided half  so  decreed  to  be  held  by  the  company  as  trustee, 
etc.,  and  said  trust  deeds  were  void,  as  against  the  rights  of 
Burton  and  Hansbrough  and  said  company,  by  reason  of  such 
failure  of  title  to  one-half  of  said  land;  and  the  court  decreed, 
not  only  that  the  half  held  by  it  to  be  the  property  of  com- 
plainants was  free  from  the  lien  of  said  trust  deeds,  but  that 
said  Wallace  had  no  claim  whatever  upon  any  portion  of  said 
tract  of  40  acres.  Burton  and  Hansbrough  elected  to  assert 
their  equities  against  Wallace.  Although  one  of  the  errors 
assigned  by  Wallace  is  that  the  court  below  refused  to  enforce 
the  lien  of  his  trust  deeds,  yet  his  counsel  do  not  present  any 
argument  to  this  court  against  the  finding  of  the  decree  in  this 
respect.  Hence  we  conclude  that  they  have  abandoned  their 
assignment  of  error.  The  deeds  from  Finnell  to  Street,  and 
from  Street  to  Hansbrough,  and  from  Hansbrough  to  Burton, 
all  contained  full  covenants  of  warranty.  If  the  grantees  had 
paid  one-half  of  the  purchase  money,  and  received  title  to 
only  one-half  the  land,  they  could  certainly  set  up  the  failure 
of  the  warranty  as  to  the  other  half  of  the  land  as  a  bar  to 
the  enforcement  by  Finnell  of  a  suit  to  foreclose  the  notes  and 
trust  deeds  given  for  the  other  half  of  the  purchase  money. 
As  Wallace,  purchaser  of  the  notes  from  Finnell,  is  seeking  to 
enforce  them  by  foreclosure  in  a  court  of  equity,  said  grantees 
could  set  up  the  same  defense  against  him  as  against  Fin- 
nell, the  original  payee.  We  are  therefore  inclined  to  think 
that  the  decree  was  correct  in  this  particular,  upon  the  hypothe- 
sis that  the  grantees  of  Finnell  had  lost  title  to  one-half  of 
the  land.     As,  however,  we  hold  that  the  title  to  one-fourth 


PARTITION.  195 

only  of  the  tract  has  failed,  Wallace  if?  entitled  to  enforce  his 
notes  and  trust  deeds  to  the  amount  of  $o,000,  with  interest, 
according  to  the  terms  of  the  notes.  To  the  extent  thus  indi- 
cated the  decree  below  is  erroneous. 

As  to  the  interest  of  the  Louisville  Banking  Company.  The 
controversy  between  the  Louisville  Banking  Company  and  Bur- 
Ion  is  whether  Burton  still  owns  the  equity  of  redemption,  sub- 
ject to  the  company's  mortgage,  or  whether  the  company  is  the 
owner  of  the  fee  of  the  property,  to  the  exclusion  of  any  right 
to  redeem  on  the  part  of  Burton.  The  determination  of  this 
question  requires  a  statement  of  the  facts  out  of  which  the  con- 
troversy grows:  Ou  January  15,  1877,  Burton  and  wife,  of 
♦Jefferson  County,  Ky.,  executed  to  R.  K.  White,  of  the  same 
county,  a  mortgage  upon  said  south  40  acres,  and  80  acres  of 
land  in  Morgan  County,  111.,  to  secure  three  notes  for  $6,000, 
$4,500,  and  $1,500  respectively,  payable  to  the  Louisville  Bank- 
ing Company,  "  and  all  renewals  or  extensions  of  the  same,  in 
whole  or  in  part,  and  save  the  said  White,  who  is  indorser  and 
security  thereon,  from  all  loss,  cost  or  damage  ;  "  the  mortgasie 
containing  a  provision  that  "if,  during  the  time  said  White 
holds  the  title  to  the  said  premises,  he  should  be  compelled  to 
pay  taxes  or  assessments,  or  other  sums,  on  account  of  being 
title  holder  thereof,  the  same,  with  interest  and  costs,  shall  con- 
stitute a  lien  upon  the  premises  aforesaid,  and  must  be  paid  by 
said  Burton  before  he  can  require  reconveyance  of  said  })rem- 
ises."  This  mortgage  was  recorded  in  Cook  County  on  January 
18,  1877,  and  in  Morgan  County  on  February  19,  1877.  After- 
wards, by  a  written  instrument  of  transfer,  dated  August  8, 
1878,  and  signed  by  both  Burtonand  White,  the  said  Burton  and 
White  assigned  to  the  Louisville  Banking  Company  the  full  bene- 
fit of  all  their  interest,  right,  and  title  in  and  to  said  mortgage, 
and  therein  agreed  that  said  banking  company  should  be,  and 
was  thereby,  substituted  to  all  the  rights  then  held  by  said  White 
under  said  mortgage,  '*  the  same,"  as  is  stated  in  said  written 
instrument,  *'  having  been  made  for  the  security  of  certain 
debts  named  therein,  and  are  in  a  supplementary  paper,  of  date 
24th  day  of  October,  1877,  and  to  indemnify  the  said  White  as 
the  surety  of  said  Burton  in  said  debts  owing  by  said  Burton  to 
said  banking  company;  and  we  hereby  agree  to  make  all  other 
and  further  transfers,  assignments,  and  writing  as  may  be  nec- 
essary to  carry  into  full  effect  the  true  intent  and  meaning 
thereof."  The  amount  of  the  indebtedness  named  in  said  mort- 
gage was  thereafter  reduced,  and  new  notes  were  executed  to 
said  banking  company  by  Burton  and  White  in  place  of  said 
three  notes,  to  wit,  one  for  $4,500,  dated  January  11,  1878, 


UXi  JOINT   ESTATES.  ' 

and  ono  for  $5,970  dated  April  24,  1.S7S,  both  payable  four 
in(»nllis  aflcr  date  to  the  order  of  said  company;  llio  latter 
reciting  upon  its  face  a  pled^'o  by  Burton,  as  secuiitv  therefor, 
of  two  notes  against  P.  G.  Kelsey  for  $1 ,219  and"$l,236.74, 
and  one  note  against  Kelsey  and  Giles  for  $1 ,19(5.74,  etc.  It 
appears  from  a  credit  on  the  note  for  $4,500  that  there  was 
pledged,  as  collateral  security  therefor,  a  claim  against  one  R. 
C.  Kerr,  upon  which  $1,171.50  was  realized  on  May  18,  1881. 
Neither  the  mortgage  aforesaid,  nor  'the  assignment  thereof, 
were  under  seal,  but  Burton  has  never  contested  the  same,  nor 
denied  his  liability  thereon.  On  August  26,  1878,  Burton  filed 
his  petition  in  bankruptcy  in  the  United  States  district  court  at 
Louisville,  Ky.,  and  was  adjudged  a  bankrupt  on  August  28, 
1878.  On  September  13,  1878,  the  creditors  met,  and  selected 
W.  W.  Gardner  as  assignee,  and  on  the  same  day  the  register 
in  bankru[)tcy  made  an  assignment  to  said  assignee  of  all  the 
property  and  effects  of  the  bankrupt.  On  April  24,  1879, 
Burton  was  discharged  from  bankruptcy  upon  his  own  applica- 
tion, and  upon  his  filing  the  assent  in  writing  of  one-fourth  in 
number,  and  one-third  in  value,  of  his  creditors,  to  whom  he 
was  liable  as  principal  debtor,  and  who  had  filed  I  heir  claims. 
On  June  26,  1880,  Gardner  was  discharged  as  assignee  of  the 
bankrupt  estate.  His  final  accounts  were  filed  on  June  26, 
1880,  and  found  to  be  correct,  and  in  his  sworn  report  filed 
with  the  register  on  that  day  he  says:  "The  bankrupt  sets 
forth  in  his  schedule  filed  in  this  court  that  he  was  the  owner 
of  a  large  amount  of  real  estate  lying  in  various  States,  all  of 
which  appears  to  be  incumbered  largely  in  excess  of  its  value, 
and  is  beyond  the  control  of  this  assignee.  *  *  *  This 
assignee  is  of  the  opinion  that  in  no  event  can  there  be  any- 
thing realized  from  the  estate  for  the  unsecured  creditors. 
Hence  he  asks  that  his  accounts  be  audited,  and  that  ho  be  dis- 
charged from  all  further  liability  on  account  of  said  trust." 
Gardner  died  in  November,  1882,  —  more  than  two  years  after 
his  discharge  as  assignee.  But  it  appears  that  an  attorney  in 
Louisville  went  before  said  district  court  on  December  15,  1882, 
and  upon  his  motion,  and  announcement  of  the  death  of  Gard- 
ner, an  order  was  entered  *'  that  Harry  Stucky  be,  and  he  is 
hereby,  appointed  assignee  in  bankruptcy  of  the  estate  of" 
George  W.  Burton.  The  records  and  files  of  the  said  district 
court  show  nothing  further  as  to  said  Stucky  except  the  motion 
and  order  above  named.  No  order  was  ever  entered,  directing 
said  Stucky  to  make  sale  of  any  of  the  property  of  the  bank- 
rupt, or  confirming  any  such  sale  after  it  was  made.  By  deed 
dated  January  14,  1884,  and  recorded  January  21, 1884,  Stucky, 


PARTITION.  197 

as  assignee  of  Burton,  and  Burton  and  wife,  united  in  a  deed 
convoying  siiid  40  acres  in  Cook  County,  and  said  80  acres  in 
Morgan  County,  to  tlie  Louisville  Banking  Company,  reciting 
therein  tlic  bankruptcy  of  Burtt)n,  the  appointment  of  Gardner, 
and  assignment  to  liiin  by  the  regif^tcr,  and  his  de;ith,  and  the 
appointment  of  Stucky,  and  reciting,  further,  that  all  the  right, 
title,  and  interest  of  Gardner,  as  assignee,  became  vested  in 
Stucky,  as  assignee;  that  Stucky  had  advertised  notice  of  sale 
for  three  weeks  in  a  Louisville  papir,  and  on  January  14,  1884, 
had  offered  said  preuiisos  for  sale  at  public  auction  at  the  court- 
house door  in  Louisville;  and  that  said  company  had  purchased 
the  same  for  $25.  Afterwards,  by  another  deed,  executed  on 
November  5,  1889,  but  dated  back  as  of  the  1st  day  of  August, 
1878,  Burton  and  wife  quitclaimed,  for  an  express  consideration 
of  $5,  all  their  interest  in  said  forty  acres  to  said  banking  com- 
pany. It  will  be  observed  that  the  transactions  referred  to 
under  this  branch  of  the  case  all  occurred  during  the  pendency 
of  this  suit  for  partition,  begun  by  the  appellees  Perry  and  Hen- 
derson. Burton  had  entered  his  appearance  in  the  case  as  early 
as  August,  1878.  He  filed  an  answer  on  January  26,  1881.  The 
Louisville  Banking  Company  was  made  a  defendant  on  April  19, 
1880,  filed  its  answer  on  April  24,  1880,  and  a  cross  bill  on  July 
3,  1882.  Gardner  was  made  defendant  on  February  11,  1881  ; 
and  Stucky,  on  December  21,  1882.  In  all  the  pleadings  of  the 
banking  company,  filed  in  the  case  prior  to  July,  1890,  it  claimed 
to  be  mortgagee  only,  and  sought  to  enforce  its  mortgage 
against  such  interest  in  the  property  as  might  be  setoff  in  the 
partition  to  Burton  or  his  assignee.  But  in  answers  filed  in  July 
and  October,  1890,  and  in  an  amended  and  supplemental  cross 
bill  filed  on  October  14,  1890,  the  banking  company  claimed 
that  it  had  become  the  absolute  owner  of  the  property  through 
the  deeds  executed  to  it  by  Burton  and  Stucky,  and  that  what- 
ever interest  in  the  property  would  have  been  set  off  to  Burton 
or  his  assignee  before  the  execution  of  said  deeds  should  now  be 
set  off  to  it,  as  owner  both  of  the  mortgagee's  title,  and  of  the 
mortgagor's  equity  of  redemption.  The  court  below  held,  and 
we  think  correctly,  that  Burton  did  not  part  with  his  right  to 
redeem  upon  the  payment  of  what  is  justly  due  to  the  bank. 

Leaving  out  of  view  for  the  moment  the  fact  that  the  deed  of 
.January  14,  1884,  was  signed  by  Burton,  and  considering  it  as  a 
deed  executed  by  Stucky  alone  as  assignee,  was  it  a  valid  deed? 
Ill  other  words,  did  Stucky  have  any  interest,  as  assignee  of 
Burton,  on  January  14,  1884,  which  passed  from  him  to  the 
banking  company  by  his  deed  of  that  date?  Burton  had  been 
■discburged  from  bankruptcy  more  thanfouryears  before  that  deed 


198  JOINT    ESTATES. 

was  executed,  and  more  than  three  years  before  the  entry  of  the 
order  appointing  Stucky  assignee.  Gurchicr  had  settled  his 
accounts  as  assignee,  and  been  discharged  from  his  trust,  more 
than  three  years  before  Stueky  made  his  dee(f,  and  more  than 
two  years  before  Stucky's  appointment.  It  must  be  concedeti 
that  the  title  to  the  property  of  the  bankrupt  })as8es  to  the 
assignee  by  the  execution  of  the  assignment  of  the  register  con- 
veying the  estate  of  the  bankrupt.  Such  assignment  relates 
back  to  the  commencement  of  the  bankruptcy  proceeding,  and 
by  operation  of  law  vests  the  title  to  all  the  bankrupt's  property 
in  the  assignee.  Bump  Bankr.  (10th  Ed.),  pp.  137,  138,  485. 
Here,  on  September  13,  1878,  and  by  relation  on  August  26, 
1878,  the  title  of  Burton  to  the  40  acres  was  in  Gardner,  as 
assignee.  But  where  was  the  title  after  the  discharge  of  Gard- 
ner on  June  26,  1880?  It  is  well  settled  that  an  assignee  is  not 
bound  to  take  possession  of,  or  claim  all  the  property  named  in 
the  bankrupt's  schedule.  He  may  reject  such  of  the  assets  as 
may  bo  a  burden,  rather  than  a  benefit,  to  the  estate.  He  may 
decline  to  receive  property  which  is  so  heavily  incumbered  as 
to  make  it  injudicious  to  receive  it.  In  England,  where  lease- 
hold estates  pass  to  the  assignee  in  bankruptcy,  he  is  not  bound 
to  take  the  lease,  and  charge  the  estate  with  the  payment  of  the 
rent,  if  the  rent  is  greater  than  the  value  of  the  lease,  but  he 
may  abandon  it.  In  such  cases,  if  the  assignee  declines  to 
receive  such  property,  or  elects  within  a  reasonable  time  not  to 
take  it,  it  remains  the  property  of  the  bankrupt.  Smith  v. 
Gordon,  6  Law  Rep.  313;  Amory  v.  Lawrence,  3  Cliff.  523; 
Glennv  v.  Lansfdon,  98  U.  S.  20;  Nash  v.  Simpson,  78  Me. 
142 ;  3  Atl.  Rep';  53 ;  Brookfield  v.  Stephens,  40  Ark.  336.  The 
assignee  is  a  trustee  appointed  for  the  purpose  of  disposing  of 
the  assets  of  the  bankrupt,  and  distributing  them  among  the 
creditors.  He  takes  the  title  in  his  official  character  as  a 
trustee,  and  as  an  officer  of  the  court.  The  bankrupt  law 
makes  no  provision  for  the  conveyance  of  the  property  undis- 
posed of  by  the  assignee  to  the  bankrupt.  As  the  assignee 
takes  no  title  as  an  individual,  but  only  as  an  officer, 
the  title  reverts  to  the  bankrupt  when  the  trust  is  ended, 
and  the  officer  is  discharged.  When  the  creditors  are  set- 
tled with,  and  the  bankrupt  is  discharged,  and  the  esttite  is 
wound  up,  and  the  assignee  is  discharged,  the  bankruiJt  be- 
comes reinstated  in  his  original  title.  It  has  been  said  that 
"  the  title  must  be  somewhere,  and  under  these  circumstances 
it  is  necessary  to  regard  it  as  the  only  party  interested."  Boyd 
V.  Olvey,  82  Ind.  294;  King  v.  Remington,  36  Minn.  15;  29  N. 
W.  Rep.  352;  Steevens  v.  Earles,  25  Mich.  40;  Jones  v.  Pyron, 


PARTITION.  199 

57  Tex.  43;  Reynolds  v.  Bank,  112  U.  S.  405  ;  5  Sup.  Ct.  Rep. 
213;  Bump  Biuikr.  (10th  Ed.),  pp.  507,669.  In  the  case  at 
bar,  while  Gardner  was  assignee,  the  40  acres  were  incumbered 
by  the  Wallace  trust  deeds,  by  the  mortgage  of  the  Louisville 
Banking  Company,  and  by  a  tax  deed  issued  in  1873.  Although 
the  land  has  greatly  increased  in  value  since  1880,  yet,  when 
Gardntr  made  his  final  report,  the  statement  therein  made,  that 
the  land  appeared  to  be  incumbered  largely  in  excess  of  its 
value,  was  literally  true.  When  he  said  that  it  was  beyond  his 
control,  he  said  in  effect,  that  he  had  never  taken  control  or 
possession  of  it,  but  had  declined  to  receive  it  as  an  asset. 
Although  he  was  n)ade  a  party  to  the  present  suit,  yet  it  was 
not  until  he  had  been  discharged  as  assignee,  and  therefore 
not  until  all  his  title,  which  was  official,  and  not  individual, 
had  ceased  to  exist.  By  his  discharge  in  June,  1880,  the 
title  thereafter  reverted  to  Burton,  and  became  reinvested 
in  him.  It  necessarily  follows  from  the  foregoing  consid- 
erations that  the  order  made  in  December,  1882,  appoint- 
ing Stucky  assignee,  and  the  deed  of  January,  1884,  viewed 
as  a  conveyance  by  Stucky  alone,  were  void,  and  of  no  effect. 
Stucky  cannot  be  regarded  as  a  successor  to  Gardner  in  the 
office  of  assignee.  Such  a  successor  would  only  be  appointed  in 
case  of  the  death,  removal,  or  resignation  of  the  former  assignee 
before  the  winding  up  of  the  bankrupt  estate.  But  where  the 
trust  is  closed,  and  the  acting  assignee  has  done  his  duty  and  has 
been  discharged,  a  new  assignee  certainly  cannot  be  appointed 
without  the  institution  of  a  new  proceeding  in  bankruptcy  in 
accordance  with  the  provisions  of  the  act.  But  no  such  new  pro- 
ceeding for  the  appointment  of  Stucky  was  instituted.  We  are 
therefore  of  the  opinion  that  Stucky  conveyed  no  title  to  the 
banking  company  by  the  deed  of  January,  1884.  The  weight  of 
authority  is  in  favor  of  the  position  that  where  the  estate  is  set- 
tled, and  the  assigned  discharged,  the  legal  title  reverts  to  the 
bankrupt  without  a  reassignment,  so  that  he  or  his  heirs  may 
bring  ejectment.  But  if  this  were  not  so,  the  equitable  title 
would  clearly  be  in  the  bankrupt,  and  whatever  title  could  be 
regarded  as  remaining  in  the  assignee,  or  in  any  person  sul)se- 
quently  appointed  by  the  court  to  act  as  assignee,  would  be  a 
naked  legal  title  held  in  trust  for  the  bankrupt.  King  v.  Rem- 
ington, supra;  Rej^nolds  v.  Bank,  supra.  Hence,  if  by  any 
process  of  reasoning,  it  could  be  held  that  Stucky  took  any  title 
at  all,  it  could  have  been  only  a  naked  legal  title,  vested  in  him 
as  a  trustee  for  Burton,  the  holder  of  the  equitable  title.  Con- 
sequently, when  Burton  united  with  Stucky  in  the  deed  of  1884, 
his  joint  execution  with  Stucky  operated  as  a  direction  to  the 


200  JOINT    ESTATES. 

latter  to  convey  such  le<^al  title  for  the  same  purpose  for  which 
Burton  was  conveying  the  equitable  title. 

This  leads  to  an  inquiry  as  to  the  loal  object  of  the  execution 
by  Burton  to  the  Louisville  Banking  Company  of  the  deeds  made 
ill  January,  1884,  and  November,  1881).  In  order  to  determine 
wht'ther  a  conveyance  made  by  the  morti^agor  to  the  mortgagee 
o[)erales  as  an  extinguisliment  of  the  right  of  redeini)tion,  it 
must  be  made  to  appear  that  the  parties  intended  such  convey- 
ance to  be  a  payment  of  the  debt.  The  intention  to  pay  the 
debt  by  a  deed  of  the  property  will  not  be  inferred  where  the 
creditor  retains  the  evidences  of  the  indebtedness,  and  the  secur- 
ities pledged  for  its  payment.  Sutphen  v.  Cushman,  35  111.  186  ; 
Knowles  v.  Knowles,  86  111.  1 ;  Dunphy  v.  Riddle,  Id.  22  ;  Bearss 
V.  Ford,  108  111.  16.  The  deed  will  not  be  regarded  asa  release 
of  the  equity  of  redemption  unless  it  is  made  for  a  consideration 
which  is  adequate,  and  which  would  be  deemed  reasonable  if 
the  transaction  were  between  other  parties.  If  the  value  of  the 
mortgaged  premises  greatly  exceeds  the  debt  secured  by  the 
mortgage,  the  fact  of  such  excess  will  tend  to  show  that  a  release 
was  not  intended.  1  Jones  Mortg.  (4th  Ed.),  §§  267,  340. 
A  subsequent  recognition  of  the  mortgagee  of  the  continued 
existence  of  the  relation  of  debtor  and  creditor  between 
the  mortgagor  and  himself  will  be  a  circumstance  tending  to 
show  the  absence  of  such  an  intention.  Id.,  §  267.  The  rela- 
tions between  the  parties,  and  other  facts  and  circumstances  of 
a  nature  to  control  the  deed,  and  to  establish  such  an  equity  as 
would  give  a  right  of  redemption,  may  be  shown  by  parol 
evidence.  Knowles  v.  Knowles,  supra;  Couant  v.  Riseborough 
(111.  Sup.),  28  N.  E.  Rep.  789.  Applying  these  principles  to 
the  facts  of  the  present  case,  we  think  it  quite  apparent  that 
the  deeds  made  by  Burton  to  the  banking  company  were  merely 
intended  as  additional  security  for  the  mortgage  indebtedness, 
and  not  as  releases  of  the  equity  of  redemption.  Neither 
the  mortgage,  nor  the  notes  secured  thereby,  nor  the  notes 
pledged  as  collateral  security,  were  surrendered  to  Burton,  or 
canceled,  but  were  retained  in  the  possession  of  the  banking 
company.  No  consideration  whatever  was  received  by  Burton 
for  making  these  conveyances  to  the  company.  When  they 
were  made,  both  Burton  and  the  company  were  parties  to  the 
present  litigation,  and  engaged  in  contesting  the  title  with  Perry 
and  Henderson  and  others.  Burton  was  a  party  to  the  litigation 
when  he  executed  the  mortgage  in  January,  1877,  and  assigned 
it  to  the  company,  in  August,  1878.  He  and  White  and  Harris, 
the  latter  being  president  of  the  company,  all  lived  in  Louisville, 
and  were  intimate  friends.     He  bad  been  himself  a  stockholder 


PARTITION.  201 

and  director  in  the  banking  company.  In  the  assignment  of  the 
mortgage  to  the  company  he  had  agreed  to  make  all  such  other 
and  further  transfers,  assignments,  and  writings  as  might  be 
necessary.  The  proof  shows  that  Burton  signed  the  deeds  of 
1884  and  1889  in  Louisville  at  the  request  of  Harris.  Harris 
told  him  that  the  attorneys  in  Chicago  had  requested  the  execu- 
tion of  the  deeds,  and  that  they  were  needed  in  the  suit  in 
Chicago,  and  for  the  correction  of  irregularities  in  former  in- 
struments. As  there  was  no  seal  on  the  original  mortgage,  such 
a  defect  might  be  cured  by  a  deed  in  the  nature  of  a  mortgage, 
executed  under  seal  to  the  mortgagee.  When  the  deed  of  1889 
was  executed,  the  value  of  the  property  had  begun  to  increase 
so  as  greatly  to  exceed  the  debt  upon  it.  We  are  satisfied  from 
a  careful  examination  of  all  the  evidence  that  Burton  merely 
signed  these  deeds  for  the  purpose  of  aiding  the  banking  com- 
pany in  the  defense  of  the  present  suit.  His  compliance  with 
the  request  of  the  president  of  the  company  to  execute  addi- 
tional papers  will  be  presumed  to  have  been  in  pursuance  of  his 
previous  agreement  upon  the  subject.  After  the  execution  of 
the  deed  of  January,  1884,  the  banking  company  filed  pleadings 
in  this  case,  in  which  it  recognized  the  relations  of  mortgagee 
and  mortgagor  as  still  existing  between  itself  and  Burton.  In 
an  answer  filed  by  it  on  February  2,  1886,  to  Wallace's  cross 
bill,  the  company  sets  up  its  claim  as  mortgagee,  refers  to  the 
amount  due  upon  its  notes,  speaks  of  its  lien,  and  asks  that  a 
certain  part  of  the  property  be  allotted  to  Burton  or  his  assignee 
in  bankruptcy,  subject  to  its  lien.  Also,  in  a  cross  bill  filed  by 
the  company  on  May  6,  1890,  after  the  execution  of  the  deed  of 
November,  1889,  the  company  again  refers  to  its  lien.  The 
recognition  in  these  pleadings  of  the  continued  existence  of  the 
lien  of  the  mortgage  is  wholly  inconsistent  with  the  claim  that 
the  company  had  ceased  to  be  mortgagee,  and  had  become  the 
absolute  owner,  of  the  property. 

It  is  assigned  as  a  cross  error  by  Burton  that  the  decree  below 
is  erroneous  in  requiring  him  to  pay  certain  moneys  advanced  by 
the  company  after  January  14,  1884,  for  expenses  and  counsel 
fees  in  setting  aside  tax  deeds  upon  the  premises  in  question. 
W^hen  the  property  was  conveyed  to  the  company,  in  January, 
1884,  it  thereafter  held  the  legal  title  in  trust  for  Burton,  sub- 
ject to  his  right  to  redeem  it  upon  paying  the  mortgage  debt  and 
interest,  and  such  legitimate  disbursements  by  the  company  as 
were  necessary  to  protect  the  title.  One  of  the  tax  deeds  was 
outstanding  before  the  mortgage  was  made,  and  although  the 
others  were  obtained  thereafter  it  does  not  appear  that  the  mort- 
gagee was  in  possession  of  the  property.     As  a  general  rule  the 


202  JOINT   ESTATES. 

mortgagee  not  in  possession  is  under  no  obligation  to  pay  the 
taxes  upon  the  mortgaged  premises.  1  Jones  Mortg.  (4th  Ed.), 
§  713.  The  decree  does  not  allow  a  counsel  fee  for  the  fore- 
closure of  the  mortgage.  The  cases  which  hold  that  a  counsel 
fee  cannot  be  recovered  in  a  decree  of  foreclosuie  unless  there  is 
a  stipulation  in  the  mortgage  allowing  it  have  no  application  here. 
Here  the  mortgagee,  being  clothed  with  the  legal  title  by  the 
mortgagor,  succeeds  in  setting  aside  tax  titles  for  the  benefit  of 
the  mortgagor,  as  well  as  for  the  benetit  of  tiie  mortgagee. 
When  the  legal  title  shall  be  restored  to  the  mortgagor,  upon 
his  payment  of  the  mortgage  debt,  it  will  be  restored  free  of  tax 
incumbrances  which  have  been  removed  by  the  mortgagee.  It 
has  been  held  that  a  court  of  equity  will  allow  a  mortgagee 
counsel  fees  incurred  in  defending  his  title,  without  any  express 
contract.  2  Jones  Mortg.  (4th  Ed.),  §  1606.  When  the  mort- 
gagee pays  taxes  to  preserve  his  security  he  is  entitled  to  re- 
cover the  amount  so  paid.  IcL,  §  1135;  Wright  v.  Laiigley, 
36  III.  381.  Upon  a  bill  to  redeem,  a  mortgagee  is  entitled  to 
credit  for  reasonable  counsel  fees  paid  in  collecting  rents  and 
profits.  2  Jones  Mortg.,  §  1138.  The  point  now  under  con- 
sideration is  not  alluded  to  by  counsel  for  the  company,  and 
merely  referred  to,  without  discussion,  by  counsel  for  Burton. 
But  we  see  nothing  inequitable  in  allowing  these  advances, 
which  are  not  unreasonable  in  amount. 

There  is  a  controversy  in  the  case  between  Hansbrough  and 
the  Louisville  Banking  Company.  Hansbrough's  claim  is  that 
he  was  the  equitable  owner  of  one-half  of  the  40  acres,  by  rea- 
son of  his  joint  pucrhase  thereof  with  Burton  ;  that  Burton  held 
the  legal  title  to  one-half  in  trust  for  Hansbrough;  that  Har- 
ris, the  president  of  the  banking  company,  had  notice  of 
Hansbrough's  interest  when  he  took  the  assignment  of  the 
mortgage  to  the  company,  on  August  8,  1878;  that  by  reason 
of  such  notice  to  its  president  the  company  cannot  enforce 
its  mortgage  against  the  one-half  interest  owned  by  Hans- 
brough, but  can  only  enforce  it  against  the  one-half  interest 
owned  by  Burton.  Hansbrough  became  a  party  to  this  pro- 
ceeding for  the  first  time  on  July  19,  1890.  On  that  day  he 
filed  an  intervening  petition,  and  asked  to  be  allowed  to  come  in 
as  a  defendant,  and  answer.  The  prayer  of  his  petition  was 
granted.  He  then  answered  the  original  bill,  and  also  filed  a 
bill  of  interpleader  setting  up  his  claims  as  above  stated.  The 
proof  shows  that  a  written  contract  was  executed  between  Bur- 
ton and  Hansbrough  on  March  2,  1871,  in  which- it  was  agreed 
that  *'they  are  jointly  and  equally  interested  in  the  above- 
described  40  acres  of  land  to  the  extent  of  one-half  each,  while 


PARTITION.  203 

the  title  is  in  said  Burton."  This  agreement  was  never  recorded. 
Burton,  however,  admits  the  owncrsliip  of  one-half  of  the  land 
by  Hansbrough,  and,  as  against  Burton,  Hausbrough  is  entitled 
to  be  regarded  as  said  owner.  But  we  think  that  the  court 
below  decided  correctly  in  holding  that  his  claim  cannot  be  sus- 
tained, as  against  the  inoitgage  of  the  bank.  When  the  banking 
company  took  an  assignment  of  the  mortgage  it  had  no  notice 
of  any  interest  in  Hansbrough.  It  is  conceded  that  the  records 
furnished  no  notice  of  such  interest.  It  is  contended,  however, 
that  the  bank  had  actual  notice.  Burton  says  that  in  May,  1873, 
he  went  to  China,  and  was  gone  several  months;  that  before 
leaving  Kentucky,  to  take  this  trip,  he  left  certain  of  his  papers 
and  business  matters  in  the  hands  of  Harris,  as  his  friend  ;  that 
he  then  told  Harris  of  the  interest  Hansbrough  had  in  the  40 
acres.  Harris  denies  that  Burton  gave  him  any  such  information, 
but  says  that  if  Burton  did  tell  him  anything  about  it,  it  must 
have  been  in  some  casual  conversation,  and  that  he  had  forgot- 
ten all  about  it  when  he  acted  for  the  bank,  more  than  five  years 
afterwards,  in  the  matter  of  the  White  mortgage.  When  he  took 
the  assignment  of  the  mortgage,  on  August  8,  1878,  Harris  was 
acting  as  the  agent  of  the  banking  company.  If  he  was  told  in 
May,  1873,  of  Hansbrough's  interest,  he  received  such  informa- 
tion while  acting  as  the  friend  or  agent  of  Burton.  He  did  not 
get  the  notice,  if  he  was  notified  at  all,  while  he  was  acting  for 
the  bank,  but  while  he  was  acting  for  an  individual.  The 
knowledge  of  the  agent  must  be  acquired  during  his  agency,  and 
in  the  course  of  the  same  transaction  from  which  the  principal's 
rights  and  liabilities  arise,  in  order  to  afiect  the  principal  with 
notice,  unless  it  is  clear  from  the  evidence  that  the  information 
obtained  by  the  agent  in  a  former  transaction  is  so  precise  and 
definite  ti)at  it  is  or  must  be  present  to  his  mind  and  memory 
will  engaged  in  the  second  transaction.  Snyder  v.  Partridge 
(111.  Su}).),  29  N.  E.  Rep.  851.  It  cannot  be  said  that  a  remark 
made  to  Harris  in  a  casual  conversation  in  1883  was  present  to 
his  mind  five  years  afterwards,  when  he  was  engaged  in  taking 
security  for  a  debt  due  to  the  bank  of  which  he  was  piesident. 
Moreover,  there  is  no  evidence  that  White,  the  original  mort- 
gagee in  the  mortgage  made  by  Burton,  had  any  notice 
whatever  of  Hansbrough's  interest  in  the  mortgaged  prem- 
ises. If  White  was  a  bona  fide  owner  of  the  mortgage, 
the  bank,  as  his  assignee,  would  take  good  title,  even 
if  its  president  had  notice.  It  is  well  settled  that  a  pur- 
chaser with  notice  may  get  a  good  title  from  a  bona  fide  pur- 
chaser without  notice  of  prior  equities.  Peck  v.  Arehart,  95 
III.    113.     But,    in    addition  to   the    foregoing    considerations, 


204  JOINT    ESTATES.  * 

Hansbrough  abandoned  the  land,  neglected  for  years  to  assert 
any  interest  in  it,  and  suffered  Burton  to  be  held  out  to  third 
parties  as  owner.  He  conveyed  the  title  to  Burton  in  January, 
1872.  In  May,  1873,  he  executed  a  lease  of  the  land  to  a  tenant 
of  Burton,  and  himself  signed  the  lease  as  agent  of  Burton, 
and  suffered  Burton  to  hold  the  possession  for  years  thereafter. 
He  delivered  up  the  written  contract  of  March  2,  1871,  to  Bur- 
ton, in  whose  possession  it  romaincd  until  the  surninor  of  1890. 
Hansbrough  went  into  bankruptcy  in  April,  1878,  and  did  not 
schedule  any  interest  in  this  land  as  a  part  of  his  assets.  He 
admits  in  his  testimony  that  he  had  forgotten  all  about  his  in- 
terest for  17  years,  from  1873  to  1890,  and  only  asserted  it  in 
the  latter  year  because  the  contract  of  March  2,  1871,  was  then 
discovered  among  Burton's  papers.  During  these  years  he  had 
been  a  witness  in  this  case,  and  knew  of  the  mortgage  of  the 
banking  company,  and  recognized  its  right  to  enforce  a  lien 
against  the  40  acres,  and  aided  its  attorneys  in  asserting  those 
rights.  Under  all  these  circumstances  we  think  that  Hansbrough 
is  estopped  from  denying  that  the  company  is  entitled  to  enforce 
its  mortgage  against  his  interest,  as  well  as  against  that  of 
Burton. 

As  to  the  tax  deeds.  After  this  cause  was  reversed  and 
remanded,  in  1888,  it  was  reinstated  in  the  court  below  in  March, 
1889.  Thereafter,  by  supplemental  bill  filed  on  May  23,  1889, 
and  amendments  thereto  filed  on  November  25,  1890,  the  com- 
plainants made  John  McCaffrey  and  John  J.  Mitchell,  holders 
of  tax  deeds,  and  James  Price,  claiming  to  be  their  tenant,  par- 
ties defendant,  and  alleged  the  invalidity  of  such  tax  deeds,  and 
asked  that  the  same  be  set  aside  as  clouds.  On  May  22,  1889, 
the  Louisville  Banking  Company  also  filed  an  amended  cross 
bill,  which  was  still  further  amended  on  May  6,  1890,  attacking 
the  tax  deeds,  and  praying  for  their  cancellation.  The  same 
allegations  as  to  the  invalidity  of  the  tax  deeds  are  made  in  the 
bill  of  interpleader  filed  by  Hansbrough  on  July  19,  1890,  and 
in  a  cross  bill  filed  by  Burton  on  October  14,  1890.  The  tax 
deeds  are  three  in  number,  —  one  dated  July  31,  1876,  executed 
to  Asahel  Gage,  who  afterwards  conveyed  to  McCaffrey ;  one 
dated  October  11,  1881,  and  one  dated  December  27,  1883,  both 
issued  to  McCaffrey.  On  June  22,  1889,  McCaffrey  conveyed 
his  interest  to  Mitchell,  who  now  owns  the  three  tax  titles.  The 
decree  of  the  court  below  declared  the  deeds  to  be  void,  and  set 
them  aside.  It  seems  to  be  taken  for  granted  by  counsel  that 
the  decree  was  correct  so  far  as  it  held  the  deeds  dated  July  31, 
1876,  and  December  27,  1883,  to  be  void.  As  counsel  for 
Mitchell  do  not  attack  the  finding  made  by  the  chancellor  in 


PARTITION.  205 

reference  to  those  deeds,  we  shiill  assume  that  no  good  reason 
exists  for  disturbing  such  Hndiug.  The  only  one  of  the  tax 
deeds  which  counsel  discuss  in  their  briefs  is  the  deed  dated 
October  11,  1881.  It  was  made  in  pursuance  of  a  sale  which 
took  place  on  August  25,  1879,  for  the  taxes  of  1877  and  1878. 
The  time  of  redemption  expired  on  August  25,  1881.  Section 
216  of  the  revenue  act  provides  that  the  purchaser  at  the  tax 
sale,  before  he  can  be  entitled  to  a  deed  of  the  land  purchased 
by  him,  shall  serve  notice  on  every  person  in  actual  possession 
or  occupancy  of  the  land,  also  on  the  person  in  whose  name  the 
same  was  taxed  or  specially  assessed,  if,  upon  diligent  inquiry, 
he  or  she  can  be  found  in  the  county,  also  upon  the  owners  of 
or  persons  interested  in  the  land,  if  they  can,  upon  diligent  in- 
quiry, be  found  in  the  county,  at  least  three  months  before 
the  expiration  of  the  time  of  redemption  on  such  sale.  The 
section,  after  specifying  what  the  notice  shall  contain,  then  pro- 
vides as  follows  :  "  If  no  person  is  in  possession  or  occupancy  of 
such  land  or  lot,  and  the  person  in  whose  name  the  same  was 
taxed  or  specially  assessed,  upon  diligent  inquiry,  cannot  be  found 
in  the  county,  or  the  owners  of,  or  parties  interested  in,  said  land 
or  lot,  upon  diligent  inquiry,  cannot  be  found  in  the  county,  then 
such  person,  or  his  assignee,  shall  publish  such  notice  in  some 
newspaper  printed  in  such  county,  *  *  *  which  notice  shall 
be  inserted  three  times,  the  tirst  time  not  more  than  five  months, 
and  the  last  not  less  than  three  months  before  the  time  of  re- 
demption shall  expire."  The  statute  thus  requires  that  the 
person  in  whose  name  the  land  is  taxed  shall  be  personally 
served  with  notice.  If,  upon  diligent  inquiry,  he  cannot  be 
found  in  the  county,  then  the  notice  must  be  inserted  in  a  news- 
paper three  times.  It  is  only  when  he  cannot  be  found  upon 
diligent  inquiry,  that  the  three  notices  are  to  be  inserted.  The 
making  of  diligent  inquiry,  and  the  failure  to  find,  as  a  result 
thereof,  must  precede  the  publication.  When  the  party  in 
whose  name  the  land  is  taxed  cannot  thus  be  found  he  is  entitled 
to  notice  by  three  publications,  — not  by  one  publication,  or  by 
two  publications.  If  the  notice  is  first  published  once  or  twice, 
and  then  the  diligent  inquiry  is  made,  and  the  failure  to  find 
results  therefrom,  the  law  is  not  complied  with.  The  statute 
does  not  contemplate  that  the  purchaser  shall  first  publish  his 
notices  and  then,  afterwards,  make  diligent  inquiry.  Inquiry 
made  before  the  insertion  of  the  first  notice  might  result 
in  finding  the  person  in  whose  name  the  land  is  taxed.  He 
may  leave  the  county  between  the  first  insertion  and  the 
second  or  third  insertion.  If  he  can  be  found  at  the  time 
when    the  first   notice    is    inserted,  he    is    not    notified    in    the 


206  JOINT    ESTATES. 

way  required  by  l:iw,  —  thiit  is,  by  personal  service,  —  but  in  a 
way  not  required  by  law,  —  that  is,  l)y  publication.  IMic  .statute 
does  not  |)erinit  the  holder  of  tiio  tax  certificate  to  postpone  his 
diligent  inquiry  until  after  he  hiis  published  his  notice.  The 
publication,  in  such  case,  has  no  legal  foundation  to  rest  upon, 
because  it  is  not  justified  or  authorized  until  there  has  first  been 
diliirent  inquiiy,  resulting  in  a  failure  to  find.  The  same  obser- 
vations here  made  as  to  the  person  in  whoso  name  the  land  is  taxed 
apply  also  to  the  owners  or  parties  interested.  The  affidavits 
filed  by  McCaffrey,  the  purchaser  of  the  40  acres  at  the  tax 
sale  on  August  25,  1879,  stated  that  G.  G.  Street  was  the  person 
in  whose  name  the  land  was  taxed,  and  that  li.  K.  White  was  a 
party  interested  in  the  land,  and  thsit  diligent  search  and  inquiry 
were  not  made  for  them  until  May  21,  1881;  but  these  affidavits 
also  state,  though  no  certificate  of  publication  is  filed  with  them, 
that  the  notice  required  by  section  210  was  inserted  in  the 
Chicago  Daily  Evening  Joiirnal  on  the  19th,  20th,  and  21st  days 
of  May,  1881.  Thus  it  appears  that  no  inquiry  was  made  for 
Street  and  White  until  the  notice  hjid  been  inserted  twice,  if  not 
three  times,  in  a  newspaper.  The  affidavits  show  that  James 
Price  was  in  the  actual  possession  and  occupancy  of  the  land  on 
May  24,  1881,  —  three  days  after  the  last  publication  of  the 
notice.  But  whether  Price  or  anybody  else  was  in  the  posses- 
sion or  occupancy  of  the  land  before  or  at  the  time  of  the  publi- 
cation of  the  notice,  or  whether  the  land  was  vacant  and  unoc- 
cupied at  that  time,  is  not  shown.  The  affidavit  of  Snow  states 
that  he  served  the  notice  on  Price,  as  being  the  only  party  in 
the  occupancy  of  the  land,  on  May  24th,  1881.  The  affidavit 
of  Price  himself  states  that  he  was  on  that  day  the  agent  of  Mc- 
Caffrey, and  on  that  day  served  a  copy  of  the  notice  on  another 
party  for  McCaffrey,  and  as  his  agent.  It  thus  appears  that  the 
purchaser  at  the  tax  sale  served  notice  upon  an  occupant  claimed 
to  be  his  own  agent,  and  acting  in  his  own  interest.  The  statute, 
by  requiring  notice  to  be  served  upon  every  person  in  actual  pos- 
session or  occupancy  of  the  land,  never  contemplated  that  the 
purchaser  at  the  tax  sale  should  himself  create  an  occupancy,  and 
then  hand  a  notice  to  the  occupant  of  his  own  creation.  Such 
service  is  not  a  compliance  with  the  law.  The  possession  or 
occupancy  specified  in  the  statute  is  one  which  is  held  adversely 
to  the  holder  of  the  tax  certificate.  We  think  that  the  decree  of 
October  11,  1881,  was  probably  held  to  be  void  because  the 
affidavits  filed  with  the  county  clerk  for  the  purpose  of  obtaining 
it  do  not  show  that  the  publication  of  the  notice  was  preceded 
by  the  preliminary  conditions  required  by  the  statute  ;  that  is  to 
say,  it  does  not  appear  that  before  publication  was  made  no  per- 


PARTITION.  207 

son  was  in  possession  or  occupancy  of  the  land,  or  that  there 
had  been  diligent  inquiry  for  the  persons  above  specified,  and  a 
failure  to  find  them.     Gage  v.  Bailey,  100  111.  530. 

Counsel  for  the  appellant  Mitchell  rely  upon  the  fourth 
section  of  the  limitation  act,  which  provides  that  '♦  actions 
brought  for  the  recovery  of  any  lands  *  *  *  ^f  which  any 
person  may  be  possessed  by  actual  residence  thereon  for  seven 
successive  years,  having  a  connected  title  in  law  or  equity, 
deducible  of  record,  *  »  *  from  any  public  officer  or 
other  person  authorized  by  the  laws  of  this  State  to  sell 
such  land  for  the  nonpayment  of  taxes,  *  *  *  shall  be 
brought  within  seven  years  next  after  possession  being  taken 
as  aforesaid,  but  when  the  possessor  shall  acquire  such 
title  after  taking  possession  the  limitation  shall  begin  to  run 
from  the  time  of  acquiring  title."  Mitchell  claims  that  Mc- 
Caffrey was  in  possession  of  the  land  by  the  actual  residence  of 
his  tenants  thereon  for  seven  successive  years,  having  such  a 
title  as  is  called  for  by  section  4,  under  said  tax  deed  of  October 
11,  1881.  The  period  of  seven  years  is  alleged  to  have  begun 
on  Febuary  10,  1882,  when  McCaffrey  executed  a  lease  to  the 
party  then  in  possession,  and  to  have  ended  before  May  22,  1889, 
when  the  first  amended  cross  bill,  making  the  holders  of  the  tax 
deeds  parties,  was  filed  herein.  Any  deed  which  purports  on  its 
face  to  convey  title  may  be  used  as  color  of  title  under  section  6 
of  the  limitation  act,  which  provides  for  possession  and  payment 
of  taxes  for  seven  years,  and  under  section  7  of  the  same  act, 
which  provides  for  payment  of  taxes  for  seven  years,  while  the 
land  is  vacant  and  unoccupied.  2  Starr  &  C.  Ann  St.,  pp.  1538- 
1548,  c.  83.  A  tax  deed  may  be  good  color  of  title  under  those 
sections  even  though  the  judgment  and  precept  upon  which  it  is 
based  are  absolutely  void.  But  it  requires  something  more  than 
mere  color  of  title  to  constitute  the  bar  contemplated  by  section 
4.  Id.,  p.  1538.  The  latter  section  requires  ap?•ma/"ac^■e  title. 
For  instance,  it  was  held  before  the  adoption  of  section  224  of  the 
present  revenue  act  (2  Starr  &  C.  Ann  St.,  p.  2101)  that  a  tax 
deed,  without  the  judgment  and  precept  upon  which  it  is  based,  is 
not  a  prima  facie  title,  such  as  is  required  by  the  act  of  1835,  of 
which  said  section  4  was  a  part.  Elston  v.  Kennicott,  46  111.  187. 
By  the  terms  of  section  4  the  officer  must  be"  authorized"  to  sell 
the  land  for  the  nonpayment  of  taxes.  Unless  the  judgment  and 
precept  are  produced,  no  authority  to  sell  is  shown.  It  cannot 
be  said  that  the  language  of  the  section  refers  to  any  deed  which 
a  public  officer  may  make  without  pretense  of  authority.  Elston 
V.  Kennicott,  supra.  On  the  contrary,  the  deed  is  one  which  is 
made  in  pursuance  of  the  authority  required  by  law.     The  right 


208  JOINT    ESTATES. 

of  the  owner  of  land  which  has  been  sold  for  taxes  to  redeem  it 
within  two  years  from  the  sale  is  a  constitutional  right;  and  the 
riii;ht  of  the  owner  to  reasonable  notice,  by  publication  or  other- 
wise, of  the  fact  of  sale,  and  when  the  time  of  redemption 
expires,  is  also  a  constitutional  right.  The  constitution  further- 
more directs  that  occupants  shall  in  all  cases  be  served  with  per- 
sonal notice  before  time  of  redemption  expires.  Const.  1870,  §  5, 
art.  9.  Hence  it  is  necessary,  in  order  to  establish  n  prima  facie 
title  under  section  4,  to  show  notice,  by  personal  service  or  by 
publication,  to  the  owner,  before  a  tax  deed  to  his  land  can  be 
lawfully  executed  by  a  public  officer.  Such  deed  is  made  without 
authority  unless  the  notice  prescril)ed  by  the  statute  is  first  given. 
Accordingly  the  legislature  has  provided  in  section  217  of  the 
revenue  act,  that  before  a  purchaser  at  a  tax  sale,  or  his  assig- 
nee, shall  be  entitled  to  a  deed,  he  must,  by  himself  or  his  agent, 
make  an  affidavit  of  his  compliance  with  the  conditions  of  said 
section  216,  above  quoted,  "  stating  particularly  the  facts  relied 
on  as  such  compliance;  "  that  this  affidavit  shall  be  delivered  to 
the  person  authorized  by  law  to  execute  the  tax  deed,  and  shall 
be  filed  by  him  with  the  officer  having  custody  of  the  record  of 
the  lands  sold  for  taxes,"  etc.,  "and  entries  of  redemption," 
etc.;  that  the  affidavit  is  to  be  entered  by  such  officer,  "  on  the 
records  of  his  office,  and  carefully  preserved  among  the  files  of 
his  office,"  etc.  The  affidavit  required  by  section  217  must  be 
produced  in  order  to  show  the  prima  facie  title  demanded  by 
such  section  4.  As  the  title  called  for  by  that  section  must  be 
*' a  connected  title,  in  law  or  equity,  deducible  of  record,"  and 
as  the  affidavit,  showing  compliance  with  the  requirements  of 
the  statute  as  to  giving  notice  to  the  owner  is  made  a  part  of  the 
record,  the  affidavit  is  a  necessary  part  of  the  prima  facie  title. 
In  the  present  case,  however,  the  affidavits  do  not  show  a  com- 
pliance with  section  216.  They  do  not  show  that  such  notice  by 
publication  as  section  216  prescribes  was  given,  for  the  reasons 
already  stated.  It  follows  that  the  appellant  Mitchell  has  not 
exhibited  such  a.  prima  facie  title  as  justifies  him  in  relying  upon 
the  bar  prescribed  bv  said  section  4.  Hughes  v.  Carne,  135  111. 
519;  26  N.  E.  Rep.  517. 

Furthermore,  we  are  of  the  opinion,  from  a  careful  examina- 
tion of  the  evidence,  that  McCaffrey  obtained  the  possession 
which  he  pleads  as  an  actual  residence  by  either  forcing  or 
persuading  a  party  who  was  holding  possession  under  Bur- 
ton to  abandon  Burton,  or  those  holding  under  him,  and 
to  attorn  to  McCaffrey.  The  actual  residence  specified  in 
section  4  is  not  an  unlawfully  acquired  possession.  It  is 
ooDceded    that   the    evidence    does    not    show    possession    and 


PARTITION.  209 

piiytuent  of  taxes  by  McCaffrey  for  seven  years  upon  the  whole 
tract  of  40  acres.  It  is  contended,  however,  that  McCaffrey 
acquired  title  to  the  N.  E.  10  acres  of  the  40  acres  by  posses- 
sion and  payment  of  taxes  for  seven  successive  years  under  the 
tax  deed  of  October  11,  1881,  as  color  of  title.  This  conten- 
tion, however,  is  not  supported  by  the  facts.  The  first  payment 
of  taxes  made  by  McCaffrey  under  his  tax  deed  wns  on  August 
5,  1882,  and  this  suit  was  begun  against  him  on  May  22,  1889, 
as  above  stated.  Seven  years  did  not  intervene  between  August 
5,  1882,  and  May  22,  1889.  In  order  to  create  a  bar  under  the 
first  section  of  the  act  of  1839,  or  section  6  of  the  present  limit- 
ation law,  seven  years  must  elapse  between  the  date  of  the  first 
payment,  when  the  statute  begins  to  run,  and  the  commence- 
ment of  the  suit.  McConnel  v.  Concpel,  46  111.  519;  Iberg  u. 
Webb,  96  III.  415;  Holbrook  v.  Debo,  99  III.  372. 

The  ai)pellant  Mitchell  further  claims  that  the  Louisville  Bank- 
ing Company  is  precluded  from  the  right  to  file  a  bdl  to  remove 
the  tax  deed  of  October  11,  1881,  as  a  cloud  upon  its  title,  upon 
the  ground  that  Gardner's  assignee  in  bankruptcy  did  not  file  the 
bill  within  two  years  from  the  time  when  the  cause  of  action 
accrued  in  his  favor,  and  consequently  that  any  suit  between 
him  and  McCaffrey,  or  Mitchell,  claiming  an  adverse  interest 
touching  this  property,  was  barred,  under  section  5057  of  the 
Revised  Statutes  of  the  United  States,  and  that  the  l>anking 
company  as  grantee  of  said  assignee  in  bankruptcy  in  the  deed 
dated  January  14,  1884,  wa.s  also  barred  bv  said  section,  under 
the  doctrine  of  Gage  v.  Du  Puy,  127  III.  216;  19  N.  E.  Rep. 
878,  and  other  cases  therein  referred  to.  This  point  would  be 
well  taken  if  the  bankmg  company  had  no  other  title,  when  it 
filed  its  bill  to  remove  the  tax  deed,  except  that  derived  from 
the  deed  made  by  Stucky,  assignee,  in  1884.  But  the  bank 
held  a  mortgage  against  Burton,  and  we  have  recently  held  that 
a  mortgagee  may  file  a  bill  to  set  aside  a  tax  deed  as  a  cloud. 
Miller  v.  Cook,  135  III.  190  ;  25  N.  E.  Rep.  757.  Whether  a 
mortgagee  in  a  mortgage  which  is  not  executed  under  seal  can 
file  such  a  bill,  or  not,  is  a  question  which  we  do  not  deem  it 
necessary  to  pass  upon  in  this  case,  because,  when  the  company 
filed  its  amended  cross  bill,  in  May,  1889,  it  held  the  legal 
title  by  reason  of  the  execution  of  the  deed  of  1884  by  Burton, 
the  raortsfagor;  he  having  united  with  Stuck v  in  making  that 
deed.  The  company  was  mortgagee,  not  only  by  reason  of  the 
original  mortgage,  but  by  reason  of  the  conveyance  to  it  by 
Burton.  A  mortgagee  holding  under  a  deed  which,  though 
absolute  in  form,  was  intended  to  be  only  a  mortgage  security, 
can  certainly  file  a  bill  to  set   aside  the  tax  deed.     Nor  do  we 


210  ESTATES    UPON    CONDITION    AND    LIMITATION. 

deem  it  necessary  to  consider  whether  or  not  the  decree  of  the 
court  below  was  correct  in  estahlisliing  a  lien  upon  the  poition 
of  the  hmd  apportioned  to  the  complainants,  Perry  an»i  Hen- 
derson, for  the  payment  of  one-half  the  amount  due  to 
Mitchell  for  purchase  money  paid  at  the  tax  sales,  and 
for  subsequent  taxes,  together  with  interest.  As  the  decree 
below  must  be  reversed,  and  the  cause  remanded,  the  court 
below  will  change  its  decree  so  as  to  lequire  one-fourth  of  said 
amount,  with  interest,  to  be  paid  by  said  complainants  as  a  con- 
dition precedent  to  the  setting  aside  of  the  tax  deeds  as  against 
the  one-fourth  interest.  We  are  of  the  o[)inion  that  the  decree 
was  correct  not  only  in  holding  said  tax  deeds  to  be  void,  but 
also  in  disallowing  the  defenses  set  up  by  said  Mitchell,  as  the 
same  have  been  herein  referred  to.  The  decree  of  the  superior 
court  is  reversed,  and  the  cause  is  remanded  to  that  court,  with 
diiections  that  it  change  and  modify  its  decree  so  far  as  it  is 
herein  held  to  be  erroneous,  and  that  it  enter  a  decree  in  accord- 
ance with  the  views  expressed  in  this  opinion.  It  is  ordered  that 
the  costs  of  this  court  be  paid,  two-eighths  by  the  appellees  Perry 
and  Henderson,  three-eighths  by  the  appellant  the  Louisville 
Banking  Company,  one-eighth  by  the  appellant  Burton,  one- 
eighth  by  the  appellant  Hansbrough,  and  one-eighth  by  the 
appellee  Mitchell.  Reversed  in  part,  affirmed  in  part,  and 
remanded  with  directions. 


CHAPTER    IX. 


ESTATES    UPON    CONDITION    AND    LIMITATION    AND  CONDITIONAL 

LIMITATIONS. 

Wiswell  V.  Bresnahan,  84  Me.  397;  24  A.  885. 

Cowell  V.  Springs,  100  U.  S.  55. 

Mann  v.  Jackson,  84  Me.  40O;  24  A.  886. 

Neely«.  Hoskins,  84  Me.  386;  24  A.  882. 

Henderson  v.  Hunter,  59  Pa.  St.  385. 

Estate  Upon  Condition   Precedent. 

Wiswell  V.  Bresnahan,  84  Me.  397;  24  A.  885. 

Whitehouse,  J.  This  was  an  action  of  debt  on  a  contract  to 
recover  the  amount  due  on  the  defendant's  subscription  to  a 
**  shoe-factory  fund,"  in  the  city  of  Ellsworth. 

It  appears  from  the  evidence  reported  that  the  defendant 
signed  a  subscription  by  which  he  promised  to  pay  the  amount 


ESTATE   UPON    CONDITION    PRECEDENT.  211 

of  his  subscription  to  the  plaintiffs,  who  were  therein  named  as 
trustees  of  the  fund,  "  when  there  shall  have  been  sul)scril)ed  an 
amount  suiBcient,  in  the  judgment  of  the  trustees,  to  carry  out 
the  purposes  of  this  trust."  This  paper  further  states  that  "  the 
purposes  of  the  trust,  and  the  rights,  powers,  and  authority  of 
said  trustees,  are  as  set  forth  in  the  following  articles  which  we, 
the  subscribers,  severally  agree  to,  and  said  trustees  shall  in 
writing  signify  their  acceptance  of  the  trust  according  to  said 
articles."  Article  2  directs  the  trustees  to  expend  such  suras  as 
they  might  deem  expedient  for  the  purchase  of  lands  and  the 
erection  of  buildings;  and  article  5  is  as  follows:  "  The  balance 
not  expended,  as  provided  in  article  2,  of  the  whole  sum  hereby 
subscribed  and  collected,  not  exceeding  twelve  thousand  dollars, 
may  he  given  by  said  trustees  to  any  persons,  firms,  or  corpora- 
tions who  shall  take  a  lease  or  leases  of  said  property,  said  gift 
or  gifts  to  be  made  on  such  terms  and  conditions  as  shall  be 
determined  upon  by  said  trustees." 

The  plaintiffs  never  signified  in  writing  their  acceptance  of  the 
trust  according  to  the  articles  of  this  agreement,  but  after  sub- 
scriptions aggregating  some  three  hundred  dollars,  including  the 
defendant's,  had  been  obtained  upon  it,  this  paper  was  with- 
drawn, and  another  one  circulated  in  its  stead,  of  substantially 
the  same  tenor,  with  the  exception  of  article  5,  which  is  as  fol- 
lows: "The  said  trustees  may  in  their  discretion  at  any  time 
convey  to  any  persons,  firms  or  corporations  the  lot,  buildings, 
or  machinery  purchased  or  erected,  as  provided  in  article  2, 
upon  such  terms  as  they  may  decide,  and  with  or  without  con- 
sideration, as  they  may  deem  for  the  best  interests  of  the  city 
of  Ellsworth  and  of  these  subscribers."  The  plaintiffs  for- 
mally signified  in  writing  their  acceptance  of  this  trust  by  an 
indorsetnent  over  their  signatures,  and  thereupon  further  sul)- 
scriptions  were  obtained  on  this  second  agreement  aggregating 
nearly  $25,000,  a  sum  sufficient,  in  the  judgment  of  the  trustees, 
to  carry  out  the  purposes  of  the  trust. 

If  the  defendant  is  liable  in  this  action,  it  is  by  virtue  of  the 
contract  which  he  signed.  But  it  is  an  elementary  principle 
common  to  all  contracts  that  there  must  be  a  mutual  assent  of 
the  parties  to  the  same  subject-matter  in  the  same  sense. 

No  contract  is  completed  until  each  party  has  accepted  every 
proposition  of  the  other  without  modification  or  the  addition  of 
new  matter.  There  must  be  a  clear  accession  on  both  sides  to  one 
and  the  same  set  of  terms.  1  Chit.  Cont.  15-21 ;  Mete.  Cont.  18  ; 
1  Pars.  Cont.  476;  Jenness  v.  Iron  Co.,  53  Me.  20;  Railroad  Co. 
V.  Unity,  62  Me.  153.  The  result  of  the  authorities  is  all 
embraced  in  the  simple  principle  that  only  when  the  wills  of  the 


212  ESTATES    UPON    CONDITION   AND    LIMITATION. 

parties  so  unite  in  the  same  thing  as  to  exactly  coincide  does  the 
law  recognize  a  contract.     Bish.  Cont.,  §   334. 

But  it  appears  from  a  comparison  of  the  two  papers  that  after 
the  defendant's  subscription  had  been  obtained  on  the  first  one, 
and  before  the  plaintiffs  had  signified  their  acceptance  of  the 
trust,  a  material  alteration  was  made  in  article  5.  The  terms  of 
article  5,  in  the  second  paper,  disclose  an  essential  modification 
of  article  5,  in  the  paper  declared  on  in  the  writ.  The  authority 
conferred  upon  the  trustees  respecting  the  disposition  of  the 
funds  is  widely  different.  There  appear  to  be  two  8e{)arate  and 
distinct  trusts.  The  trust  accepted  by  the  plaintiffs  in  writing 
is  not  the  one  set  forth  in  the  contract  signed  by  the  defendant. 

The  acceptance  of  the  trust  by  the  plaintiffs  according  to  the 
articles  of  the  agreement  must  be  deemed  an  essential  term  of 
the  contract.  The  defendant  might  well  repose  special  confi- 
dence in  the  integrity,  ability,  and  discretion  of  the  plaintiffs, 
and  willingly  contribute  to  a  fund  to  be  employed  at  their  dis- 
cretion, when  he  would  decline  to  subscribe  if  others  wereuamed 
as  trustees.  Acceptance  by  the  plaintiffs  was  therefore  a  con- 
dition precedent  to  their  right  to  enforce  payment  of  the  sub- 
scriptions. 

But  it  is  insisted  in  behalf  of  the  plaintiff's  that,  though  they 
omitted  to  signify  their  acceptance  in  writing  on  the  paper  signed 
by  the  defendant,  they  did  in  fact  accept  the  trust  and  enter 
upon  the  execution  of  it.  Of  this,  however,  there  is  no  satisfac- 
tory evidence.  They  did  not  signify  their  acceptance  in  writing 
on  the  first  paper,  and,  after  subscriptions  to  an  insignificant 
amount  had  been  obtained  upon  it,  it  was  superseded  by  another 
and  a  different  one  on  which  is  written  the  plaintiff's  form  of 
acceptance  of  the  trust,  "according  to  the  articles  thereof." 
The  inference  from  this  is  irresistible  that  the  plaintiffs  decided 
not  to  accept  the  trust  set  forth  in  the  agreement  declared  on. 
The  amount  which  in  the  judgment  of  the  plaintiffs  was  suffi- 
cient to  carry  out  the  purposes  of  the  trust  was  sul)scribed  on 
the  second  paper,  and  not  on  the  first.  The  plaintiffs  entered 
upon  the  discharge  of  the  trust  which  they  accepted,  and  not  of 
the  trust  which  they  did  not  accept.  The  facts  reported  estab- 
lish no  contract  by  which  the  defendant  is  bound.  Railroad  Co. 
V.  Unity,  supra. 

Plaintiffs  nonsuit. 

Peters,  C.  J.,  and  Virgin,  Libbey,  and  Foster,  JJ.,  concurred. 
Emery,  J.,  did  not  sit. 


ESTATE    UPON    CONDITION    SUBSEQUENT.  213 

Estate  Upon  Condition  Subsequent  —  Restriction  Against  Sale 
of  Intoxicating  Liquors  on  Premises. 

Cowell  V.  Springs  Co.,  100  U.  S.  55. 

Mr.  Justice  Field.  In  May,  1873,  the  plaintiff  in  the  court 
below,  the  Colorado  Springs  Company,  sold  and  conveyed  to 
the  defendant,  Cowell,  two  parcels  of  land,  situated  in  the  town 
of  Colorado  Springs,  in  the  then  Territory  of  Colorado,  The 
deed  of  conveyance  stated  that  the  consideration  of  its  execu- 
tion was  $250,  and  an  agreement  between  the  parties  that  intox- 
icating liquors  should  never  be  manufactured,  sold,  or  otherwise 
disposed  of  as  a  beverage  in  any  place  of  public  resort  on  the 
premises.  And  it  was  expressly  declared  that  in  case  this  condi- 
tion was  broken  by  the  grantee,  his  assigns  or  legal  representa- 
tives, the  deed  should  becoine  null  and  void,  and  the  title  to  the 
premises  conveyed  should  revert  to  the  grantor ;  and  that  the 
grantee  in  accepting  the  deed,  agreed  to  this  condition.  The 
defendant  went  into  possession  of  the  premises  under  the  deed, 
and  soon  afterward  opened  a  billiard  saloon  in  a  building 
thereon,  which  became  a  place  of  public  resort,  where  he  sold 
and  disposed  of  intoxicating  liquors  as  a  beverage.  The  grantor 
thereupon  brought  the  present  action  of  ejectment  for  the  pos- 
session of  the  premises,  the  title  to  which,  it  claimed,  had  re- 
verted to  it  upon  breach  of  the  condition  contained  in  its  deed; 
and  it  recovered  judgment.  It  does  not  appear  that  the  com- 
pany had  made  any  previous  entry  upon  the  premises  or  any 
demand  for  their  possession. 

The  principal  questions,  therefore,  for  our  determination  are 
the  validity  of  the  condition,  and,  on  its  breach,  the  right  of  the 
plaintiff  to  maintain  the  action  without  previous  entry  or  de- 
mand of  possession. 

The  viilidity  of  the  condition  is  assailed  by  the  defendant  as 
repugnant  to  the  estate  conveyed  His  contention  is,  that  as  the 
granting  words  of  the  deed  purport  to  transfer  the  land,  and 
the  entire  interest  of  the  company  therein,  he  took  the  property 
in  absolute  ownership,  with  liberty  to  use  it  in  any  lawful  man- 
ner which  he  might  choose.  With  such  use  the  condition  is 
inconsistent,  and  he  therefore  insists  that  it  is  repugnant  to  the 
estate  granted.  But  the  answer  is,  that  the  owner  of  property 
has  a  right  to  dispose  of  it  with  a  limited  restriction  on  its  use, 
however  much  the  restriction  may  affect  the  value  or  the  nature 
of  the  estate.  Repugnant  conditions  are  those  which  tend  to 
the  utter  subversion  of  the  estate,  such  as  prohibit  entirely  the 
alienation  or  use  of  the  property.  Conditions  which  prohibit  its 
alienation  to  particular  persons  or  for  a  limited  period,  or  its 


214  ESTATES    UPON    CONDITION    AND    LIMITATION. 

subjection  to  particular  uses,  are  not  subversive  of  the  estate; 
they  do  not  destroy  or  limit  its  alienable  or  inheritable  character. 
Sheppard's  Touchstone,  159,  131.  The  reports  are  full  of  cases 
where  conditions  imposing  restrictions  upon  the  uses  to  which 
property  conveyed  in  fee  may  bo  subjected  have  been  ui)held. 
In  this  way  slaughter-houses,  soap-factories,  distilleries,  livery 
stables,  tanneries,  and  machine-shops  have,  in  a  multitude  of 
instances,  been  excluded  from  particular  localities,  which,  thus 
freed  from  unpleasant  sights,  noxious  vapors,  or  disturbing 
noises,  have  become  desirable  as  places  for  residences  of  families. 
To  hold  that  conditions  for  their  exclusion  from  premises  con- 
veyed are  inoperative  would  defeat  numerous  arrangements  in  our 
large  cities  for  the  health  and  comfort  of  whole  neighborhoods. 

The  condition  in  the  deed  of  the  plaintiff  against  the  manufac- 
ture or  sale  of  intoxicating,  liquors  as  a  beverage  at  any  place  of 
public  resort  on  the  premises  was  not  subversive  of  the  estate 
conveyed.  It  left  the  estate  alienable  ond  inheritable,  and  free 
to  be  subjected  to  other  uses.  It  was  not  unlawful  nor  against 
public  policy,  but,  on  the  contrary,  it  was  imposed  in  the  interest 
of  public  health  and  moralit}'. 

A  condition  in  a  deed,  not  materially  different  from  that  under 
consideration  here,  was  held  valid  and  not  repugnant  to  the 
grant  by  the  Court  of  Appeals  of  New  York  in  Pluml)  v.  Tubbs, 
41  N.  Y.  442.  And  a  similar  condition  was  held  by  the  Supreme 
Court  of  Kansas  to  be  a  valid  condition  subsequent,  upon  the 
continued  observance  of  which  the  estate  conveyed  depended. 
14  Kan.  61.  See,  also.  Doe  v.  Keeling,  1  Mau.  &  Sel.  95,  and 
Gray  v.  Blanchard,  8  Pick.  (Mass. )  283. 

We  have  no  doubt  that  the  condition  in  the  deed  to  the 
defendant  here  is  valid  and  not  repugnant  to  the  estate  con- 
veyed. It  is  a  condition  subsequent,  and  upon  its  breach  the 
company  had  a  right  to  treat  the  estate  as  having  reverted  to  it, 
and  bring  ejectment  for  the  premises.  A  previous  entry  upon 
the  premises,  or  a  demand  for  their  possession,  was  not  neces- 
sary. By  statute  in  Colorado  it  is  sufficient  for  the  plaintiff  in 
ejectment  to  show  a  right  to  the  possession  of  the  demanded 
premises  at  the  commencement  of  the  action  as  heir,  devisee, 
purchaser,  or  otherwise.  The  commencement  of  the  action 
there  stands  in  lieu  of  entry  and  demand  of  possession.  See, 
also,  Austin  v.  Cambridgeport  Parish,  21  Pick.  (Mass.)  215; 
Cornelius  v.  Ivins,  2  Dutch.  (N.  Y.)  276;  Ruch  v.  Rock  Island, 
97  U.  S.  693. 

The  other  objections  urged  to  the  title  of  the  plaintiff  are 
equally  untenable.  It  seems  that  its  title  is  derived  through 
mesne  conveyances  from  one  Lamborn,  to  whom,  in  September, 


ESTATE    UPON    CONDITION    SUBSICQUKNT.  215 

1870,  a  patent  of  the  United  States  was  issued  embracing  the 
demanded  premises.  This  patent  adds  to  Lamborn's  name  the 
word  "  trustee,"  without  niention  of  any  trust  upon  which  he  is 
to  hold  the  property.  It  is  therefore  contended  that  he  must 
be  considered  as  holding  it  for  some  undeclared  use  of  the 
grantor,  and  that  consequently  he  could  not  convey  it  without 
the  consent  or  direction  of  the  latter,  in  this  case  the  govern- 
ment.  But  the  answer  to  this  position  is  given  in  the  patent 
itself,  by  the  recital  that  the  land  was  purchased  by  the  patentee 
of  the  government,  thus  negativing  the  inference  that  the  latter 
retained  any  interest  in  the  property  or  advanced  the  purchase- 
money.  And  besides,  if  any  trust  was  in  fact  created,  it  was  for 
the  cestui  que  trust,  and  no  one  else,  to  complain  of  the  action 
of  the  patentee  and  to  enforce  the  trust;  it  did  not  prevent 
the  legal  title  from  passing  by  his  conveyance.  Perry  Trusts, 
§  334. 

In  March,  1872,  the  patentee  conveyed  the  premises  to  the 
National  Land  Improvement  Company  of  El  Paso  County, 
Colorado,  a  corporation  created  under  the  laws  of  Pennsylvania, 
with  power  to  receive,  hold,  and  grant  real  and  personal 
property;  explore,  locate,  and  improve  lands;  transport  emi- 
grants and  merchandise  ;  construct  houses  and  buildings  ;  manu- 
facture, trade,  and  traffic  ;  colonize,  organize,  and  form  settle- 
ments; operate  mineral  and  other  lands,  and  improve  and  work 
the  same,  provided  such  lands  be  located  in  Utah,  Arizona,  or 
adjoining  States  and  Territories  lying  west  of  the  Mississippi; 
and  to  do  such  acts  as  should  be  necessary  to  promote  the 
success  of  the  corporation  and  the  public  good.  The  defendant 
contends  that  this  corporation,  invested  with  these  extensive 
powers  to  settle  up  the  country  and  advance  its  own  interests 
and  the  public  welfare,  had  not  the  capacity  to  act  in  the 
Territory  of  Colorado  and  to  hold  and  convey  real  property 
there.  By  the  law  of  March  2,  1867,  then  in  force,  the  legis- 
latures of  the  several  Territories  of  the  country  were  prohibited 
from  granting  private  charters,  and  were  only  authorized  to 
create  by  general  law  corporations  for  mining,  manufacturing, 
and  other  industrial  pursuits.  14  Stat.  426.  His  position  is 
that  Congress  intended  to  prevent  the  creation  of  corporations 
like  this  one  of  Pennsylvania,  as  the  extensive  powers  granted 
to  it  tended  to  monopolize  landed  estates  for  purposes  of  specu- 
lation, and  thereby  injure  the  agricultural,  mining,  and  manu- 
facturing interests  of  the  country  ;  and  if  a  domestic  corporation 
could  not  be  created  with  such  powers  for  reason  of  public 
policy,  a  foreign  corporation  could  not  for  like  reasons  be  per- 
mitted to  exercise  them  in  the  Territory.     The  answer  to  this 


216  ESTATES    UPON    CONDITION    AND    LIMITATION. 

position  is  found  in  the  general  comity  which,  in  the  absence  of 
positive  direction  to  the  contrary,  obtains  through  the  States  and 
Territories  of  the  United  States,  by  which  corporations  created 
in  one  State  or  Territory  are  permitted  to  carry  on  any  hiwful 
business  in  another  State  and  Territory,  and  to  acquire,  hold, 
and  transfer  property  there  equally  as  individuals.  If  the  policy 
of  the  State  or  Territory  docs  not  permit  the  business  of  the 
foreign  corporation  in  its  limits,  or  allow  the  corporation  to 
acquire  or  hold  real  property,  it  must  be  expressed  in  some 
affirmative  way  ;  it  cannot  be  inferred  from  the  fact  that  its  leg- 
islature has  made  no  provision  for  the  formation  of  similar  cor- 
porations, or  allows  corporations  to  be  formed  only  by  general 
law.  Telegraph  companies  did  business  in  several  States  before 
their  legislatures  had  created  or  authorized  the  creation  of  similar 
corporations;  and  numerous  corporations  existing  by  special 
charter  in  one  State  are  now  engaged,  without  question,  in  busi- 
ness in  States  where  the  creation  of  corporations  by  special 
enactment  is  forbidden. 

The  National  Land  and  Improvement  Company,  the  day  fol- 
lowing the  receipt  of  the  deed  of  Lombard,  conveyed  the  premises 
to  the  phiiuliff,  the  Colorado  Springs  Company.  This  company 
was  incorporated  in  1871  for  the  purpose  of  aiding,  encouraging, 
and  inviting  immigration  to  the  Territory,  and  to  purchase,  hold, 
and  dispose  of  lands,  town  lots,  mineral  springs,  and  other  prop- 
erty, also  to  construct  and  operate  ditches,  wagon  roads,  and 
railroads,  and  mills  for  manufacturing  lumber,  and  generally  to 
do  all  things  authorized  by  the  laws  of  the  Territory  which  might 
tend  to  accomplish  the  purposes  stated.  At  that  time  the  legis- 
lature was  restricted,  as  already  mentioned,  in  its  power  to  create 
by  general  law  corporations.  It  was  not  empowered  to  authorize 
the  formation  of  companies  to  aid  and  encourage  immigration, 
and  for  that  purpose  to  take,  possess,  and  convey  real  property 
in  the  Territory.  Therefore  the  defendant  contends  that  the 
company  could  not  acquire  a  right  to  the  premises  in  controversy. 
But  the  answer  to  this  position  is,  that,  for  some  of  the  purposes 
designated  in  the  articles  of  incorporation,  the  lavv  in  existence 
authorized  the  incorporation  of  companies;  therefore  the  incor- 
ponition  here  was  not  wholly  illegal :  a  corporate  body  competent 
to  exercise  some  of  the  powers  mentioned  was  created,  and  under 
the  statute  of  the  Territory  could  acquire  and  hold  or  convey, 
by  deed  or  otherwise,  any  real  or  personal  estate  whatever,  nec- 
essary to  enable  it  to  carry  on  its  business.  Whether  the  par- 
ticular premises  in  controversy  are  necessary  for  that  business 
is  not  important;  that  is  a  matter  between  the  government  of 
the  State,  succeeding  that  of  the  Territory,  and  the  incorporation, 


CONDITION    IN  RESTRAINT   OF   MARRIAGE.  217 

and  is  no  concern  of  the  defendant.  It  would  create  great  in- 
conveniences and  embarrassments  if,  in  actions  by  corporations 
to  recover  the  possession  of  their  real  property,  an  investigation 
was  permitted  into  the  necessity  of  such  property  for  the  pur- 
pose of  their  incorporation,  and  the  title  made  to  rest  upon  the 
proof  of  that  necessity.  Natoma  Water  and  Mining  Co.  v. 
Clarkin,  14  Cal.  552. 

But  there  is  another,  and  general  answer  to  this  objection. 

The  defendant,  as  already  stated,  went  into  possession  of  the 
premises  in  controversy  under  the  deed  of  the  plaintiff.  He  took 
his  title  from  the  company,  with  a  condition  that  if  he  manufac- 
tured or  sold  intoxicating  liquors,  to  be  used  as  a  beverage,  at 
any  place  of  public  resort  on  the  premises,  the  title  should  revert 
to  his  grantor  ;  and  he  is  therefore  estopped,  when  sued  by  the 
grantor  for  the  premises,  upon  breach  of  this  condition,  from 
denying  the  corporate  existence  of  the  plaintiff,  or  the  validity 
of  the  title  conveyed  by  its  deed.  Upon  obvious  principles,  he 
cannot  be  permitted  to  retain  the  property  which  he  received 
upon  condition  that  it  should  be  restored  to  his  grantor  on  a  cer- 
tain contingency, by  denying,  whenthe  contingency  has  happened, 
that  his  gnmtor  ever  had  any  right  to  it.  Gill  v.  Fauntloroy, 
8  B.  Mon.  (Ky.)  1H5;  Miller  v.  Shackleford,  4  Dana  (Ky.),  287, 
288  ;  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)   161. 

Judgment  affirmed. 


Coudition  iu  Restraint  of  Marriage,  Valid  where  it  Creates  an 
estate  upon  Liniitation. 

Mann  v.  Jackson,  84  Me.  400;  24  A.  886. 

Whitehouse,  J.  This  is  a  bill  in  equity  brought  for  the  pur- 
pose of  obtaining  a  judicial  construction  of  the  following  will ;  — 

'♦  (1)  I  will  that  the  money  which  may  come  from  the  policy 
of  insurance  which  I  hold  on  my  own  life  be  appropriated  to  the 
payment  and  discharge  of  any  and  all  mortgages  then  existing 
on  my  homestead  house  and  lot  on  Cedar  street,  in  said  Bangor, 
so  that  said  homestead  may  be  free  from  all  incumbrances, 
and  any  balance  to  be  applied  to  pay  any  taxes  then  due  or 
unpaid,  on  said  homestead,  and  any  balance  to  go  with  my  other 
estate. 

"  (2)  My  said  homestead  house  and  lot  aforesaid  I  give  and 
devise  to  my  unmarried  daughter,  Helen  S.  Mann,  for  and  dur- 
ing her  natural  life,  unless  she  shall  be  married,  in  which  case 
her  life  estate  shall  cease.  So  long  as  she  shall  live  and  remain 
unmarried  she  is  to  have  the  exclusive  right  of  occupa1,ion,  use, 
and  enjoyment  of  said  homestead,  but  subject  to  the  duty  of 


218  ESTATES  UPON  CONDITION  AND  LIMITATION. 

keeping  it  in  good  repjiir  at  her  expense,  and  l)aying  uU  taxes 
and  keeping  the  property  well  insured.  If  all  parties  interested 
see  fit  to  sell  the  pro()erty,  they  may  do  so,  in  which  case  Helen 
is  to  receive  the  net  income  from  the  proceeds  of  sale,  the  same 
to  be  well  invested  for  that  purpose;  and,  if  the  buildings  are 
burned  in  whole  or  part,  the  insurance  money  shall  he  api)lied 
to  repair  or  rebuild,  unless  all  agree  to  a  different  appropriation 
of  the  money,  viz.,  all  parties  interested. 

"  (3)  All  other  estate,  real  and  personal,  of  all  kinds,  which  I 
may  own  or  possess  at  death,  including  the  remainder  of  my 
homestead  house  and  lot  aforesaid,  my  farm  on  the  '  Odin  Road,' 
so-called,  and  all  other  property,  I  give  in  equal  shares  to  my 
three  children,  William  E.  Mann,  Mrs.  Augusta  S.  Harden,  and 
Helen  S.  Mann,  to  have  and  to  hold  the  same  to  them,  and  their 
heirs  and  assigns,  forever." 

After  the  death  of  the  testator,  Helen  S.  Mann  married,  and 
is  the  defendant  in  this  suit. 

The  language  of  the  second  item  of  the  will  is  specially 
brought  in  question.  The  plaintiff  says  that  the  defendant's 
"  life  estate  "  in  the  homestead  was  terminated  by  her  marriage, 
while  the  defendant  contends  that  the  clause  lin)iting  her  ex- 
clusive title  by  her  marriage  is  void,  as  being  a  condition  in 
restraint  of  marriage,  and  that  she  is  entitled  to  the  sole  use 
and  occupation  of  the  homestead  during  her  natural  life. 

It  is  undoubtedly  an  established  rule  of  law  that,  even  with 
respect  to  devises  of  real  estate,  a  subsequent  condition  which 
is  intended  to  operate  in  general  and  unqualified  restraint  of 
marriage,  or  the  natural  effect  of  which  is  to  cause  undue  re- 
straint upon  marriage  and  promote  celibacy,  must  be  held  illegal 
and  void,  as  contrary  to  the  principles  of  sound  public  policy. 
It  appears  from  the  early  English  cases  that  this  doctrine  was 
borrowed  by  the  English  ecclesiastical  courts  from  the  Roman 
civil  law,  which  declared  absolutely  void  all  conditions  in  wills 
restraining  marriage,  whether  precedent  of  subsequent,  whether 
there  was  any  gift  or  not.  But  the  courts  of  equity  found 
themselves  greatly  embarrassed  between  their  anxiety  on  the 
one  hand  to  follow  the  ecclesiastical  courts  and  their  desire  on  the 
other  to  give  more  heed  to  the  plain  intention  and  wish  of  the 
testator  as  manifested  by  the  whole  will.  Thereupon  the  pro- 
cess of  distinguishing  commenced  for  the  purpose  of  preventing 
obvious  hardships  arising  from  the  application  of  that  technical 
rule  to  particular  cases.  As  a  result  there  has  been  ingrafted 
upon  the  doctrine  a  multitude  of  curious  refinements  and 
subtle  distinctions  respecting  real  and  personal  estate,  con- 
ditions   and    limitations,    conditions    precedent    and   conditions 


CONDITION    IN    RESTRAINT    OF    MARRIAGE.  219 

subsequent,  gifts  with  and  without  valid  limitations  over,  and 
the  application  of  the  rule  to  widows  and  other  persons.  Indeed, 
it  may  be  said  of  the  decisions  upon  this  subject  with  even  more 
propriety  than  was  observed  by  Lord  Mansfield  in  regard  to 
another  branch  of  law,  that  "  the  more  we  read,  unless  we  are 
very  careful  to  distinguish,  the  more  we  shall  be  confounded," 
The  whole  subject  as  to  what  conditions  in  restraint  of  marriage 
shall  be  regarded  as  valid  and  what  as  void  would  seem  to  be 
involved  in  great  uncertainty  and  confusion  both  in  England  and 
in  this  country.  There  is  clearly  discernible,  however,  through 
all  the  decisions  of  later  times,  an  anxiety  on  the  part  of  the 
judges  to  limit  as  much  as  possible  the  rule  adopted  from  the 
civil  law.  "  The  true  rule  upon  the  subject  is,"  says  Mr.  Red- 
field,  "  that  one  wdio  has  an  interest  in  the  future  marriage  and 
settlement  of  a  person  in  life  may  annex  any  reasonable  condi- 
tion to  the  bequest  of  property  to  such  person,  although  it  may 
operate  to  delay  or  restrict  the  formation  of  the  married  relation, 
and  so  be  in  some  resi)ect  in  restraint  of  marriage.  *  *  * 
Where  there  are  hundreds  of  conflicting  cases  upon  a  point,  and 
no  general  principle  running  through  them  by  which  they  can 
be  arranged  or  classified,  what  better  can  be  done  than  to  aban- 
don them  all,  and  fall  back  upon  the  reason  and  good  sense  of 
the  question,  as  the  courts  have  of  late  attempted  to  do?"  2 
Redf.  Wills,  *290,  §  20,  and  note.  See  also.  Id.  297,  and  2 
Jarm.  Wills,  569.  Beyond  the  general  proposition  first  stated, 
the  cases  seem  finally  to  resolve  themselves  for  the  most  part 
into  the  mere  judgment  of  the  court  upon  the  circumstances  of 
each  particular  case.  2  Redf.  Wills,  *297,  §  31,  2  Pom.  Eq. 
Jur.  933;  Coppage  v.  Alexander's  Heirs,  2  B.  Mon.  313,  and 
note  to  same,  38  Amer.  Dec.  153. 

But  the  rule  was  so  far  modified  and  relaxed  that  conditions 
annexed  to  devises  and  legacies  restraining  widows  from  marry- 
ing have  almost  uniformly  been  pronounced  valid.  2  Pom.  Eq. 
Jur.,  supra.  From  the  numerous  decisions  upon  the  subject  in 
the  United  States,  the  conclusion  is  fairly  to  be  drawn  that  such 
conditions  will  be  upheld  in  the  case  of  widows,  whether  there  is 
a  gift  over  or  not.  2  Jarm.  Wills,  p.  564,  note  29;  2  Redf. 
Wills,  296;  Schouler  Wills,  603.  See,  also,  recent  cases  of 
Knight  V.  Mahoney,  152  Mass.  523;  25  N.  E.  Rep.  971,  and 
Nash  V.  Simpson,  78  Me.  142;  3  Atl.  Rep.  53. 

l\\  2  Redf.  Wills,  296,  the  author  says:  "We  apprehend 
there  is  no  substantial  reason  either  in  law  or  morals,  why  a 
man  should  be  allowed  to  annex  an  unreasonable  condition  in 
restraint  of  marriage,  one  merely  in  terrorem^  in  case  of  a  wife, 
more  than  of  a  child  or  any  other  person,  in  regard  to  whose 


220  ESTATES    UPON    CONDITION    AND    LIMITATION. 

settlement  in  life  he  may  fairly  be  allowed  to  take  an  interest; 
but  the  cases  certainly,  many  of  them,  maintain  such  distinc- 
tion." 

It  is  unnecessary,  however,  to  enter  upon  an  elaborate  dis- 
cussion of  the  subject,  the  existence  of  the  rule  as  recognized 
in  Randall  v.  Marble,  61)  Me.  310,  is  not  here  questioned.  In 
that  case  the  rule  was  applied  to  a  *'  crude  and  ill-defined  " 
proviso  in  a  deed  of  real  estate.  We  have  no  occasion  to  ques- 
tion the  soundness  of  that  decision.  It  was  the  judgment  of  the 
court  upon  a  particular  set  of  words  in  that  deed.  It  is  not  an 
authority  to  control  the  judgment  of  the  court  respecting  the 
construclion  of  an  entirely  different  set  of  words  in  a  testa- 
mentary gift  of  real  estate. 

There  is  a  recognized  distinction  between  conditions  in  re- 
straint on  marriage  annexed  to  testamentary  dispositions  and 
restraints  on  marriage  contained  in  the  very  terms  of  the  limit- 
ation of  the  estate  given. 

In  Heath  v.  Lewis,  SDeGex,  M.  &  G.  954  (1853),  a  testator 
made  a  gift  of  £30  a  year  to  an  unmarried  woman  during  the 
term  of  her  natural  life,  "  if  she  shall  so  long  remain  unmar- 
ried." Lord  Justice  Knight  Bruce  said:  "It  must  be  agreed 
on  all  hands  that  it  is,  by  the  English  law,  competent  for  a  man 
to  give  to  a  single  woman  an  annuity  until  she  shall  die  or  be 
married,  whichever  of  these  two  events  shall  first  happen.  All 
men  agree  that,  if  such  a  legatee  shall  marry  the  annuity  would 
thereupon  cease.  '  During  the  term  of  her  natural  life,  if  she 
so  long  remain  unmarried,'  is  the  technical  and  proper  language 
of  limitation,  as  distinguished  from  a  condition." 

Lord  Justice  Turner  said:  "  It  may  either  be  a  gift  for  life 
defeated  by  a  condition,  or  it  may  be  a  gift  to  her  so  long  as 
she  remains  unmarried,  that  is,  for  life,  if  she  be  so  long  un- 
married; and  the  question  is  therefore  purely  one  of  intention, 
in  which  of  the  two  senses  the  words  were  used." 

Jones  V.  Jones,  1  Q.  B.  Div.  279  (1876),  is  an  important 
authority.  It  related  to  a  devise  of  real  estate,  the  testator's 
language  being  as  follows:  "Provided  said  Mary  remains  in 
her  present  state  of  single  woman  ;  otherwise,  if  she  binds  her- 
self in  wedlock  she  is  liable  to  lose  her  share  of  the  said  property 
immediately,  and  her  share  to  be  possessed  by  the  other  parties 
mentioned."  Blackburn,  J.,  said  :  "  A  number  of  cases  have 
been  referred  to,  from  which  it  appears  that  the  courts  of  equity 
have  adopted  from  the  ecclesiastical  or  civil  law,  it  is  unneces- 
sary to  say  to  what  extent,  the  rule  that  conditions  in  general 
restraint  of  marriage  are  invalid.  The  attempt  to  escape  from 
the  consequences  of  this  rule  led  to  decisions  in  which  a  great 


CONDITION    IN    RESTRAINT   OF   MARRIAGE.  221 

many  nice  distinctions  were  established  as  to  whether  the 
bequest  amounted  to  a  condition  or  only  a  limitation.  If  this 
point  had  been  as  to  a  bequest  of  personal  estate,  it  would  have 
been  necessary  to  look  at  these  decisions.  But  this  is  a  devise 
<»f  land  which  is  governed  by  the  rules  of  the  common  law,  and 
it  is  admitted  that  there  is  no  case  which  extends  the  rule  as  to 
conditions  or  limitations  to  devises  of  land. 

"  There  is  I  admit  strong  authority,  that,  when  the  object  of 
the  will  is  to  restrain  marriage  and  ))romote  celibacy,  the  courts 
will  hold  such  a  condition  to  be  contrary  to  public  policy,  and 
void.  But  here  there  appears  to  be  no  intention  to  promote 
celibacy.  Now  here,  I  think,  when  one  sees  the  scope  of  the 
testator's  dispositions,  it  comes  to  this:  *I  have  left  to  three 
women  enough  to  live  upon,  and  if  one  of  them  dies  I  bring  in 
Jemima  and  Mary.  But  if  Mary  (I  suppose  as  the  youngest  she 
was  most  likely  to  change  her  state),  happens  to  marry,  her  hus- 
band must  maintain  her,  and  her  share  shall  pass  to  the  rest.' 
Now,  if  he  had  said  this  in  express  words,  could  it  have  been 
contended  that  his  provision  was  contrary  to  public  policy  ?  I 
think  not.  It  is  admitted  that  the  limitation  to  Mary  until  she 
marries  is  perfectly  good,  but  it  is  said  that  here,  because  the 
disposition  is  in  the  form  of  a  condition  it  is  bad." 

Lush,  J.,  said;  "We  ought  to  take  the  words  in  such  a 
sense  as  to  carry  out  the  object  of  the  testator,  unless  it  is 
illegal  ;  and  as  I  read  the  words,  the  testator  only  meant  to  pro- 
vide for  her  while  she  was  unmarried.  There  is  nothing  in  these 
words  which  compels  us  to  think  it  was  the  testator's  object 
that  this  niece  should  never  marry  at  all  ;  he  probably  supposed 
that  she  would  be  maintained  by  her  husband,  and  did  not  mean 
to  provide  for  husband  and  wife."  See,  also,  Hotz's  Estate, 
38  Pr.  St.  422;  Cornell  v,  Lovett's  Ex'rs,  35  Pa.  St.  100;  Gray- 
don  V.  Graydon,  23  N.  J.  Eq.  230;  Courter  v.  Stagg,  27  N.  J. 
Eq.  305. 

It  is  the  enlightened  policy  of  courts  of  equity,  when  not 
restrained  by  compulsory  rules,  to  seek  to  discover  the  intention 
of  the  testator  from  the  whole  instrument,  rather  than  from  any 
particular  form  of  words. 

In  the  case  before  us  the  testator  makes  careful  provision  in 
the  first  item  of  the  will  for  the  appropriation  of  so  much  of  the 
proceeds  of  his  life  insurance  as  might  be  necessary  to  discharge 
all  mortgages  on  the  homestead.  In  the  second  item  he  devises 
the  homestead  to  his  unmarried  daughter  "  for  and  during  her 
natural  life,  unless  she  shall  be  married,  in  which  case  her  life 
estate  shall  cease.  So  long  as  she  shall  live  and  remain  unmar- 
ried she  is  to  have  the  exclusive  right  of  occupation,  use  and 


222  ESTATES     UPON    CONDITION    AND    LIMITATION. 

enjoyment  of  said  homestead."  In  case  all  parties  interested 
agree  to  a  sale  of  the  property,  this  daughter  is  to  receive  the 
net  income  of  the  proceeds,  '*  the  same  to  be  well  inv(>sted  for 
that  purpose  ;  "  and,  in  the  event  of  the  destruction  of  the  buihl- 
ings  by  fire,  the  insurance  money  shall  be  applied  in  rebuilding 
them.  In  the  third  item  he  gives  the  residue,  including  the 
remainder  of  his  homestead,  to  his  three  children  in  equal  shares. 

Here,  then,  is  the  case  of  a  parent  who  has  a  recognized  right, 
and  was  under  a  moral  obligation  to  interest  himself  in  the 
settlement  of  his  daughter.  To  the  ordinary  mind,  nntram- 
meled  by  the  "  mediaivalism  of  the  law,"  there  is  nothing  in  the 
will  indicating  any  other  thought  or  feeling  than  an  affectionate 
regard  for  the  welfare  and  happiness  of  a  beloved  daughter,  and 
an  anxious  desire  to  provide  for  her  a  permanent  and  com- 
fortable home.  The  modern  court,  free  from  the  incubus  of 
arbitrary  legal  dogmas,  must  fail  to  discover  in  the  language  of 
this  will  any  suggestion  of  a  purpose  on  the  part  of  the  father  to 
impose  a  condition  in  ierrorem  in  restraint  of  his  daughter's 
marriage.  It  discloses  no  other  disposition  than  a  praiseworthy 
desire  to  secure  to  the  daughter  the  continued  occupation  and 
enjoyment  of  the  old  homestead  until,  by  reason  of  her  mar- 
riage, she  should  cease  to  need  it;  then  she  was  to  share  equally 
with  her  sister  and  brother  in  the  entire  estate.  It  is  manifest 
from  the  whole  tenor  of  the  will  that  nothing  was  more  remote 
from  the  real  purpose  of  the  testator  than  the  idea  of  discouraging 
the  marriage  of  this  daughter.  The  intention  was  not  to  pro- 
mote celibacy,  but  simply  to  furnish  support  until  other  means 
should  be  provided.  Because  of  the  inadvertent  use  by  the 
scrivener  of  the  word  "  unless"  this  court  is  not  compelled  to 
impose  upon  this  instrument  an  intention  which  it  is  manifest 
from  the  context  the  testator  never  had.  There  is  no  such 
inflexible  rule  ;  the  rights  of  the  parties  are  not  to  be  determined 
by  an  application  of  such  a  Procrustean  method.  The  provision 
is  in  no  respect  contro  bonos  mores.  It  is  not  violative  of  any 
principle  of  sound  policy ;  and,  if  it  is  here  necessiiry  and  proper 
to  recognize  and  maintain  the  distinction  between  a  limitation 
and  a  condition  subsequent,  the  language  of  this  will  should  be 
held  to  constitute  a  valid  limitation,  and  not  an  illegal  condi- 
tion. 

The  defendant's  exclusive  right  to  the  possession  and  enjoy- 
ment of  the  entire  homestead  ceased  upon  her  marriage. 

Decree  accordingly. 

Peters,  C.  J.,  and  Virgin,  Libbey,  Emery,  and  Foster,  JJ., 
concurred. 


CONDITION    DISTINGUISHED    FROM    A    TRUST.  223 

Estate  Upon  Condition  Distinguished  from  a  Trust. 

Neely  v.  Hoskins,  84  Me.  386;  24  A.  882. 

Peters,  C.  J.  This  is  a  real  action  to  recover  a  lot  of  land, 
wilh  a  church  edifice  thereon  situated  in  Old  Town,  the  demand- 
ant claiiuino^  under  a  deed  to  himself  from  Ira  Wadleigh,  dated 
November  21, 1885,  which,  omitting  formal  parts  and  description 
of  premises,  is  as  follows:  — 

'*  Know  all  men  by  these  presents,  that  I,  Ira  Wadleigh,  now 
of  Sacramento,  in  the  State  of  California,  formerly  of  Old 
Town,  Maine,  by  Joseph  B.  Moor,  of  Bangor,  may  lawful  attor- 
ney duly  and  legally  authorized  to  make  and  execute  and  deliver 
these  presents,  in  consideration  of  five  hundred  dollars  to  me  in 
hand  paid  by  George  Burgess,  of  Gardner,  bishop  of  the  Prot- 
testant  Episcopal  Church  for  the  diocese  of  Maine,  the  receipt 
whereof  is  hereby  acknowledged,  do  hereby  give,  grant,  sell,  and 
convey  unto  the  said  George  Burgress,  bishop  as  aforesaid,  upon 
the  condition  that  it  shall  be  forever  for  the  use  of  the  Protest- 
ant Episcopal  Church  at  Old  Town,  and  to  his  successors  in 
said  office  forever,  a  certain  lot  of  land  on  the  east  side  of 
Marsh's  island,  in  Old  Town,  county  of  Penobscot,  Maine,  and 
all  the  buildings,  fixtures,  and  property  thereon  at  the  date 
hereof,  known  as  '  St.  James'  Church  and  Lot,'  to  wit:  *  *  * 
Reserving  and  excepting  from  said  conveyance  to  said  Wadleigh 
and  to  J.  H.  Hillard,  their  heirs  and  assigns,  the  occupation  of 
three  pews  numbered  eleven  and  thirteen,  and  to  said  Hillard 
the  pew  heretofore  conveyed  to  him  by  deed  from  said  Wadleigh 
or  the  parish  of  St.  James'  Church.     *     *     * 

"  To  have  and  to  hold  the  aforegranted  premises,  with  all  the 
privileges  and  appurtenances  thereof,  to  the  said  George  Burgess, 
and  his  successors  in  said  office,  forever.  And  I  do  covenant 
with  said  grantee  and  his  successors  that  said  premises  are  free 
of  all  incumbrances  created  by  me,  and  that  I  and  my  heirs  shall 
and  will  warrant  and  defend  the  same  to  said  grantee  and  his 
successors  forever  against  the  lawful  claims  and  demands  of  all 
persons  claiming  by,  through,  or  under  me. 

*♦  In  witness  whereof  I,  the  said  Wadleigh,  by  Joseph  B. 
Moor,  my  attorney,  authorized  as  aforesaid,  for  the  considera- 
tion aforesaid,  have  hereunto  set  my  hand  and  seal  this 

day    of ,  in   the   year  of    our    Lord   one  thousand  eight 

hundred  and  sixty-five." 

The  defendants  are  grantees  and  heirs  of  Ira  Wadleigh,  now 
deceased,  and  claim  that  the  foregoing  is  a  deed  upon  condition 
subsequent,  that  the  condition  has  been  broken,  and  that  the 
estate  has  reverted  to  themselves  as  such  heirs. 


224  ESTATES   UPON    CONDITION   AND   LIMITATION. 

Upon  the  question  of  forfeiture  and  reverter,  and  of  estoppel 
and  waiver,  much  is  adduced  on  both  sides,  aud  many  arguments 
urged.  The  defendant's  counsel,  liowcver,  deny  that  the  con- 
veyance is  upon  condition,  contending  that  it  is  to  be  construed 
as  a  deed  of  trust  merely.  If  this  position  be  tenable,  and  we 
feel  constrained  to  so  hold,  all  the  other  questions  that  have 
appeared  in  the  case  become  superseded  thereby. 

It  is  not  expressed  in  the  deed  that  the  estate  shall  be  reverti- 
ble  for  any  cause,  but  it  is  contended  that  the  idea  is  implied. 
The  term  "  condition  "  does  not  necessarily  import  it.  ♦'  Con- 
dition "  may  mean  "  trust,"  and  "  trust  "  mean  "  condition," 
oftentimes.  The  construction  must  depend  upon  the  context  and 
any  admissible  evidence  outside  of  the  deed. 

An  examination  of  certain  prior  instruments  of  conveyance  to 
Wadleigh  from  the  parish,  named  in  his  deed  to  the  bishop,  will 
very  much  assist  in  showing  the  intention  of  the  parties  as  con- 
tained in  the  deed  in  question. 

The  parish,  having  a  full  title  to  the  property,  excepting  as 
incumbered  by  mortgage,  conveyed,  on  July  8,  1852,  to 
Wadleigh  certain  pews  in  the  house  by  a  deed  of  the  following 
form  :  — 

*'  Know  all  men  by  these  presents,  that  we,  the  undersigned, 
wardens  of  St.  James'  Church, in  Old  Town,  being  duly  authorized 
in  the  premises,  in  consideration  of  large  claims  against  the  par- 
ish given  up  to  us  in  said  cai)acity  by  Ira  Wadleigh,  Esq.,  which 
we  do  hereby  acknowledge,  have  bargained,  sold,  and  conveyed, 
and  by  these  presents  do  hereby  bargain,  sell,  and  convey,  unto 
said  Wadleigh  and  his  heirs  and  assians  forever,  the  ri<>;ht  to 
occupy,  use,  and  enjoy  forty-five  pews  in  St.  James'  Church,  in 
Old  Town  aforesaid,  and  the  privileges  to  said  pews  belonging, 
said  pews  being  numbered  as  below. 

"  This  conveyance  is  on  the  condition  that  neither  the  said 
Wadleigh,  nor  his  heirs  or  assigns,  shall  change  the  woiship  in 
said  church  to  any  other  denomination  than  that  of  the  Protestant 
Episcopal  Church,  or  in  any  manner  consent  that  it  may  be 
changed,  and  it  shall  be  void,  and  the  property  revert,  if  so 
changed,  either  wholly  or  in  part. 

*'  To  have  and  to  hold  the  rights  aforesaid  to  him,  said  Wad- 
leigh, and  his  heirs  and  assigns,  forever,  upon  the  condition 
aforesaid.  And  we  do  hereby  in  our  said  capacity  covenant  with 
said  Wadleigh  that  said  pews  are  free  of  all  incumbrances,  and 
that  we  in  our  said  capacity  will,  and  the  wardens  of  said  church 
shall,  warrant  and  defend  said  pews  on  the  condition  aforesaid, 
to  him,  said  Wadleigh,  and  his  heirs  and  assigns,  forever,  against 
the  lawful  claims  and  demands  of  all  persons. 


CONDITION    DISTINGUISHED    FROM   A   TRUST.  225 

**  In  testimony  whereof  we,  the  wardens  of  the  church  afore- 
said, have  set  their  hands  and  affixed  their  seals  this  eighth  day 
of  July,  A.  D.  1852,  in  our  capacity  of  wardens. 

•'  The  pews  hereby  conveyed  are  numbered  as  follows ;   *   *   * 
"  Signed,  sealed  and  delivered  in  the  presence  of  us. 

"  D.  C.  Weston.     Ira  Wadleigh.  [l.  s.] 
"  Cony  Foster,  [l.  s.]  " 

On  the  same  day  the  parish  made  to  him  another  deed  (omit- 
ting a  part  of  the  description  of  the  premises),  as  follows :  — 

"  Know  all  men  by  these  presents,  that  we,  Ira  Wadleigh 
and  Cony  Foster,  wardens  of  the  parish  of  St.  James'  Church, 
in  Old  Town,  Maine,  being  duly  authorized  in  the  premises,  in 
consideration  that  Ira  Wadleigh,  Esq.,  of  said  Old  Town,  has 
given  to  the  said  parish  a  receipt  in  full  of  all  demands,  and  has 
also  given  to  said  puri^-h  a  full  release  and  discharge  of  a 
mortgage  against  said  parish,  recently  assigned  to  said  Wadleigh 
by  Samuel  Blake,  Esq.,  do  hereby  give,  remise,  release,  sell,  and 
forever  quitclaim  unto  the  said  Wadleigh,  his  heirs  and  assigns, 
a  certain  parcel  of  land,  with  the  church  and  one  other  building 
thereon,  lying  on  the  east  side  of  Marsh  Island,  in  said  Old  Town, 
viz.  ;  Lot  numbered  fourteen,  according  to  Herrick's  plan  of 
part  of  lot  numbered  fifteen,  Holland's  survey  and  plan,  and 
bounded  as  follows ;  *  *  *  Being  the  same  lot  conveyed  to 
the  parish  by  Turner  Cowing  and  James  Green,  November  20, 
1840. 

*'  To  have  and  to  hold  the  aforementioned  premises,  with  all 
the  privileges  and  appurtenances  to  the  same  belonging,  to  the 
said  Wadleigh,  and  to  his  heirs  and  assigns,  forever,  subject  to 
the  following  reservations  and  conditions  :  — 

"  The  said  parish  reserves  to  itself  forever  the  ownership  of 
all  the  pews  in  said  church,  together  with  free,  sole,  uncondi- 
tional, uninterrupted,  and  exclusive  use,  occupation  and  control 
of  said  church,  with  its  appurtenances,  except  the  basementhall, 
forever.  This  reservation  includes  the  furnace  and  cellar  in  the 
rear  of  said  hall,  with  the  right  of  access  at  all  times  to  and  from 
said  cellar  through  said  hall. 

"  The  parish  reserves  the  right  to  repair  and  alter  said  church 
and  to  rebuild  it,  if  destroyed  from  any  cause,  on  the 
old  foundations,  free  of  all  charges  of  ground  rent  for- 
ever. It  is  understood,  however,  that  the  insurable  inter- 
est in  said  church  and  its  appurtenances  is  to  be  and  remain 
in  the  said  Wadleigh,  his  heirs,  representatives,  and  assigns, 
the  insurance  thereof  to  be  made  in  his  and  their  names,  and 
for  his  and  their  use  and  benefit,  the  said   parish  divesting  itself 

15 


226  ESTATES    UPON    CONDITION    AND    LIMITATION. 

of    all    insurable    interest ;    and  the  foregoing  reservations  are 
made  subject  to  this  qualification  :  — 

"The  insurable  interest  thus  made  available  to  the  said  Wad- 
leigh  is  intended  as  a  compensation  in  part  for  the  great  expend- 
itures and  sacrifices  which  he  has  made  in  behalf  of  said  parish 
in  the  erection  of  said  church.  The  following  are  the  conditions 
on  which  this  deed  is  given  :  — 

"  Condition  first  is  that  neither  the  said  Wadleigh,  nor  his 
heirs  nor  assigns,  shall  ever  use  said  basement  hall,  nor  allow 
nor  suffer  it  to  be  used  on  Sundays  ;  so  that  the  church  services 
may  never  be  disturbed  on  this  holy  day  by  any  movements  or 
noise  underneath.  Nor  shall  said  hall  be  used  on  any  other  day 
of  the  week  for  any  purpose  that  may  be  an  annoyance  to  the 
parish,  or  disturb  the  week  day  services  in  said  church. 

**  Condition  second  is  that  so  much  of  the  lot  hereby  conveyed 
as  lies  east  of  a  line  twenty  feet  distant  from  the  west  end  of 
said  church,  and  parallel  thereto,  shall  always  be  left  with  said 
church  for  its  accommodation. 

*'  In  witness  whereof  we,  the  said  Wadleigh  and  Foster,  have 
hereunto  set  our  hands  and  seals  this  eighth  day  of  July,  A.  D. 
eighteen  hundred  and  fifty-two,  in  their  capacity  of  wardens 
aforesaid.  ,  "  Ira  Wadleigh.     [l.  s.] 

"  Cony  Foster,     [l.  s.] 

**  Signed,  sealed,  and  delivered  in  the  presence  of 

♦'  Nathan  Weston, 
*'  Danl.  C.  Weston." 

These  deeds,  as  explained  by  other  facts,  show  quite  conclu- 
sively that  the  deed  to  the  bishop  was  intended  to  be  a  convey- 
ance in  trust,  and  not  upon  any  condition  that  could  work  a 
forfeiture  to  the  grantor.  The  only  condition  that  was  created 
lies  between  the  bishop  and  the  parish. 

One  very  influential  fact,  tending  to  show  the  correctness  of 
this  conclusion,  is  that  the  conveyance  was  not  a  gift  or  donation 
from  Wadleigh,  but  a  purchase  from  him  by  the  bishop,  who 
collected  the  money  for  the  purpose  from  sources  outside  of  the 
parish.  Then  there  is  the  further  fact  that  Wadleigh  conveyed 
not  much  more  than  a  technical  title  to  the  property,  already 
loaded  with  restraints  and  conditions  in  favor  of  the  parish, 
giving  only  a  quitclaim  deed  or  what  amounts  to  such.  He  had 
not  the  estate  to  convey.  At  most  he  had  but  a  limited  right  of 
possession  and  use  in  a  basement  hall  in  the  building,  and  a  right 
of  occupation  in  a  considersble  number  of  pews.  It  would  cer- 
tainly be  unusual  to  annex  such  a  condition  as  is  pretended  upon 
a  purchase  of  such  an  interest  in  such  a  property. 


CONDITION    DISTINGUISHED    FROM    A    TRUST.  227 

It  will  be  seen  from  the  deed  to  Wadleigh  what  a  burden  was 
imposed  upon  his  estate  by  conditions  and  restrictions.  **  The 
parish  reserves  to  itself  forever  the  ownership  to  all  the  pews 
in  the  church,  together  with  the  free,  sole,  unconditional,  unin- 
terrupted, and  exclusive  use,  occupation  and  control  of  the 
church  and  its  appurtenances,  except  the  basement  hall."  It 
also  reserves  some  right  of  use  of  the  hall,  and  restricts  the 
grantee  in  his  use  of  it.  And  it  retains  the  perpetual  right  of 
repairing  the  church,  and  to  rebuild  the  same  without  payment 
of  rent,  in  case  of  its  destruction  by  fire. 

Besides,  the  testimony  shows  that  the  deed  of  the  parish  to 
Wadleigh  includes  valuable  land  adjoining  the  church,  not 
included  in  the  deed  from  him  to  the  bishop.  The  latter  deed 
excludes  enough  land  for  two  good  house  lots,  and  does  not  even 
include  the  territory  upon  which  the  rectory  belonging  to  the 
church  stood  at  the  time. 

In  view  of  all  the  circumstances,  the  witness  Sewall,  who 
would  be  perhaps  more  likely  than  any  other  person  to  be 
informed  on  the  question,  testifies  that  the  $500  paid  was  an 
adequate  consideration  for  the  interest  purchased.  At  all  events, 
that  sum  was  satisfactory  to  the  grantor,  who  had  removed  from 
Old  Town,  and  was  then  in  California.  The  parish  was  evi- 
dently poor,  and  the  pews  neither  valuable  nor  salable.  Of 
course,  if  the  premises  were  worth  no  more  than  that  sum  to 
sell,  there  would  be  no  more  value  in  them  to  the  grantor  upon  a 
reverter.  The  heirs  are  mistaken  in  supposing  if  such  be  their 
view  that  a  forfeiture  of  the  interest  to  them  would  discharge 
the  conditions  imposed  upon  the  property  by  prior  deeds.  In 
the  light  of  these  facts,  it  seems  unreasonable  to  believe  that 
the  grantor  Wadleigh  would  have  asked  for  conditions  of  for- 
feiture, or  that  the  grantee  would  have  submitted  to  any. 

Furthermore,  there  is  every  reason  to  believe  that  the  grantor 
never  conceived  the  idea  of  inserting  any  condition  for  his  own 
benefit  in  the  conveyance.  The  deed  was  executed  in  his  name 
and  for  him  by  Joseph  B.  Moor,  a  son-in-law,  under  the  author- 
ity of  a  general  power  of  attorney  to  take  possession  of  all 
his  real  and  personal  property  in  Penobscot  County  and  any 
property  in  which  he  was  interested,  and  sell  the  same,  or  any 
j)art  thereof,  for  such  sums  or  prices  and  on  such  terms  as  to 
him  should  seem  meet.  The  same  grantor  sells  to  Charles  Wad- 
leigh a  balance  of  the  church  lot  not  covered  by  his  deed  to  the 
bishop,  describing  it  as  "  all  the  land  west  of  the  premises  here- 
tofore by  me  conveyed  to  George  Burgess,  bishop  of  the 
diocese  of  Maine,  in  trust  for  the  parish  of  St.  James." 

He  not  only  thus  describes  the  conveyance  as  a  trust,  but  the 


228  ESTATES    UPON    CONDITION    AND    LIMITATION. 

bishop  does  the  same  thing,  who  undoubtedly  dictated  the  form 
of  the  deed  by  the  following  written  communication  :  — 

*'Gardinkii,  May  3,  18G5. 

♦*  My  Dear  Sir:  I  have  written  to  Mr.  Joseph  B.  Moor,  of 
Bangor,  who  Mr.  Wadleigh  authorized,  by  his  power  of  attor- 
ney, to  make  a  deed  of  his  interest  in  the  church  at  Old  Town; 
and  have  informed  him  that  1  would  request  you,  as  Mr.  Wad- 
leigh suggested,  to  prepare  the  deed,  and  would  have  the  money, 
$500,  in  readiness  at  the  time  of  its  execution. 

"  The  deed,  it  appears  to  me,  should  be  made  to  me,  as 
bishop  of  the  Protestant  Episcopal  Church  in  Maine,  and  to  my 
successors  in  office,  in  trust  for  the  parish  of  St.  James'  Church, 
Old  Town. 

*' You  will  judge  best  whether  it  should  be  a  quitclaim  deed 
or  more.  You  will  also  satisfy  yourself,  I  presume,  by  exami- 
nation, that  there  is  no  other  incumbrance. 

*'  Mr.  Wadleigh  reserves  five  pews,  and  they  should  be  desig- 
nated. He  fixes  the  boundary  at  twenty-five  feet  west  of  the 
church.  If  you  will  send  me  the  draft  of  the  deed  before  it  is 
executed,  I  will  send  it  back  with  a  check  for  the  money. 

"  Respectfully  yours, 

"  George  Burgess." 

"Hon.  G.  P.  Sewall." 

If  it  be  inquired  why  there  were  inserted  in  the  deed  to  the 
bishop  the  words,  "  upon  the  condition  it  shall  be  forever  held 
for  the  use  of  the  Protestant  Episcopal  Church  in  Old  Town," 
the  answer  is  that  the  bishop  was  buying  the  interest  for  the 
parish  and  not  for  himself.  He  collected  the  money  paid  for 
the  purpose  for  the  parish,  and  not  for  himself.  Therefore  he 
was  to  hold  the  property  for  the  benefit  and  use  of  the  parish. 
Had  the  bishop  taken  a  deed  to  himself  in  unqualified  terms,  the 
parish  would  have  stood  in  the  same  relation  towards  him  as 
they  had  before  stood  with  Wadleigh.  The  object  was  to  ex- 
tend relief  to  the  parish,  and  to  obtain  its  freedom  from  such 
claim  in  the  hands  of  Wadleigh  or  any  one  else.  It  was  not  to 
have  the  claim  of  Wadleigh  assigned,  but  to  extinguish  it. 

Undoubtedly  the  deed  contains  a  condition  for  the  benefit  of 
the  parish,  but  not  for  Wadleigh's  benefit.  It  operates  between 
the  parish  and  the  bishop,  and  is  not  available  otherwise.  Every 
trust  implies  a  condition  that  the  trustee  will  faithfully  adminis- 
ter the  trust.  Equity  would  enforce  this  trust  at  the  instance 
and  for  the  benefit  of  the  parish.  But  the  heirs  of  Ira  Wadleigh 
could  not  complain.     Sohier  v.  Trinity  Church,  109  Mass.  1. 

Judgment  for  defendant. 

Walton,  Virgin,  Emery,  Foster,  and  Haskell,  JJ.,  concurred. 


ESTATE  UPON  LIMITATION.  229 

Estate  upon  Liiinitation. 

Henderson  v.  Hunter,  59  Pa.  St,  335. 

Agnew,  J.  This  was  an  action  of  trespass  by  church  trustees 
under  a  deed  of  trust  made  by  Thomas  Pillow  in  1836,  for  tak- 
ing: down  and  rcniovino:  the  materials  of  a  church  buildiuo:  in 
1867.  The  case  turns  on  the  limitation  in  the  deed.  The  legal 
estate  of  the  trustees  clearly  has  no  duration  beyond  the  use  it 
was  intended  to  protect.  The  word  "  successors  "  is  used  to 
perpetuate  the  estate,  but  as  the  trustees  are  an  unincorporated 
body  having  no  legal  succession,  there  is  nothing  in  the  terms  of 
the  grant  to  carry  the  trust  beyond  its  appropriate  use.  This 
brings  us  to  the  limitations  of  the  use  itself. 

it  is  for  the  erection  of  "  a  house  or  place  of  worship  for  the 
use  of  the  members  of  the  Methodist  Episcopal  Church  of  the 
United  States  of  America  (so  long  as  they  use  it  for  that  pur- 
pose, and  no  longer,  and  then  to  return  back  to  the  original 
owner),  according  to  the  rules  and  discipline  which  from  time 
to  time  may  be  agreed  upon  and  adopted  by  the  ministers  and 
preachers  of  the  said  church  at  their  General  Conference  in  the 
United  States  of  America."  This  is  the  main  purpose  of  the 
trust,  the  other  portions  of  the  deed  relating  to  the  use  being 
ancillary  only  to  this  principal  object.  The  interjected  words, 
"  so  long  as  they  use  it  for  that  purpose  and  no  longer,  and 
then  to  return  back  to  the  original  owner,"  are  terms  of 
undoubted  limitation,  and  not  of  condition.  They  accompany 
the  creation  of  the  estate,  qualify  it,  and  prescribe  the  bounds 
beyond  which  it  shall  not  endure. 

The  equitable  estate  is  in  the  members  of  the  church  so  long 
as  they  use  the  house  as  a  place  of  worship  in  the  manner  pre- 
scribed and  no  longer.  This  is  the  boundary  set  to  their  inter- 
est, and  when  this  limit  is  transcended  the  estate  expires  by  its 
own  limitation,  and  returns  to  its  author.  The  words  thus  used 
have  not  the  slightest  cast  of  a  mere  condition.  No  estate  for 
any  fixed  or  determinate  period  had  been  granted  before  these 
expressions  were  reached,  and  they  were  followed  by  no  proviso 
or  other  indication  of  a  condition  to  be  annexed. 

"  A  special  limitation,"  says  Mr.  Smith,  in  his  work  on 
Executory  Interests,  p.  12,  **  is  a  qualification  serving  to  mark 
out  the  bounds  of  an  estate,  so  as  to  determine  it  ipso  facto 
in  a  given  event  without  action,  entry,  or  claim,  before  it  would, 
or  might,  otherwise  expire  by  force  of,  or  according  to,  the 
general  limitation."     A  special  limitation  may  be  created  by  the 


230  ESTATES    UrON    CONDITION    AND    LIMITATION. 

words  "  until,"  "  so  long,"  "  if,"  "  whilst,"  and  "  during,"  as 
when  land  is  granted  to  one  so  long  as  ho  is  parson  of  Dale,  or 
wtiile  he  continues  unmarried,  or  until  out  of  the  rents  ho  shall 
have  made  £500.  2  Black.  Com.  155  ;  Smith  on  Exec.  Int.  12; 
Thomas  Coke,  2  vol.,  120-21  ;  Fearne  on  licm.  12,  13  and  note 
p.  10.  "In  such  case,"  says  Biackstone,  "the  cst;ite  deter- 
mines as  soon  as  the  contingency  hap[)ens  (when  he  ceases  to  be 
parson,  marries  a  wife,  or  has  received  the  £500),  and  the  sub- 
sequent estate  which  depends  on  such  determination  becomes 
immediately  vested,  without  any  act  to  be  done  by  him  who  is 
next  in  expectancy." 

The  effect  of  the  limitation  in  this  case  was  that  estate  of  the 
trustees  terminated  the  moment  tlie  house  ceased  to  bo  used  as  a 
place  of  worship  according  to  the  rules  and  discipline  of  the 
church,  by  the  members  to  whose  u>^e  in  that  manner  it  had  been 
granted;  and  the  reversion  ipso  facto  VQiuvn^d  to  Thomas  Pillow, 
the  grantor.  The  abandonment  of  the  house  as  a  place  of 
worship,  therefore,  became  a  chief  question  in  the  cause,  because 
the  title  of  the  trustees  to  the  property,  and  consequently  their 
right  to  maintain  this  action,  hinged  upon  this  event.  Then,  as 
the  use  of  the  members  of  this  church  was  to  l)e  according 
to  the  rules  and  discipline  from  time  to  time  adopted  by  the 
general  conference,  it  became  a  question  whether  the  alleged 
abandonment  of  the  house  as  a  place  of  worship  was  by  church 
authority,  and  according  to  the  rules  and  discipline  then 
existing;  for  a  mere  temporary  suspension  of  seivice  there,  or 
a  discontinuance  of  the  use  without  authorit}',  would  not,  ipso 
facto,  determine  the  use.  Hence  an  inquiry  both  into  the 
fact  of  abandonment  and  the  authority  of  the  church  became 
essential. 

According  to  the  constitution  and  discipline  of  the  Methodist 
Episcopal  Church  of  the  United  States,  its  preachers,  denomi- 
nated deacons  and  elders,  are  not  called  by  the  societies  to  which 
they  preach,  but  are  appointed  to  stations,  and  to  travel  in  cir- 
cuit, by  the  presiding  bishop  of  the  annual  conference.  The 
power  is  lodged  in  him,  but  fiom  a  practical  necessity  he  acts 
with  the  advice  of  his  council  of  presiding  elders  assembled  at 
the  annual  conference.  The  government  of  the  church  is  cleri- 
cal and  not  lay.  It  has  no  admixture  of  the  laity,  excepting  in 
the  quarterly  conference  of  the  circuit  or  station,  in  which  certain 
lay  official  members  are  admitted  to  seats  ex  necessitate  rei.  The 
annual  conferences  are  composed  of  the  deacons  and  elders  in  the 
traveling  ministry  within  the  respective  conferences,  presided 
over    by    a    bishop    or    superiutendent    as    originally    termed, 


ESTATE    UPON    LIMITATION.  231 

assigned  to  hold  the  conference  by  the  board  of  bishops.  The 
general  conference  consists  of  delegates,  elected  by  all  the 
annual  conferences  from  among  the  traveling  preachers,  pre- 
sided over  by  the  bishops  in  turn,  and  holding  its  sessions 
quadrennially. 

The  annual  conferences  are  divided  into  districts,  composed  of 
the  circuits  and  stations  within  their  respective  boundaries. 
Over  each  district  the  bishop,  at  the  annual  conference,  appoints 
an  elder  to  preside,  who  travels  his  district  four  times  a  year, 
and  presides  at  the  quarterly  conferences  in  each  circuit  or 
station,  composed  of  the  traveling  and  local  preachers,  exhort- 
ers,  stewards,  class  leaders,  trustees,  and  first  male  superintend- 
ent of  Sunday-schools.  A  station  has  a  single  place  of  stated 
public  service,  while  a  circuit  has  several.  It  is  to  these  circuits 
and  stations  the  traveling  preachers  are  assigned  at  every  annual 
conference.  In  his  circuit  or  station  the  preacher  in  charge 
arranges  or  "plans"  the  appointments  of  service  during  the 
term  of  his  own  appointment.  In  planning  the  circuit  he  may 
take  the  advice  of  the  stewards,  if  he  choose  to  ask  it ;  and  in 
arranging  the  appointments  for  service  it  is  his  duty  to  give  the 
local  preachers  within  his  charge  regular  and  systematic  employ- 
ment on  the  Sabbath. 

No  specific  directions  are  found  in  the  discipline  as  to  the  ar- 
rangement of  the  appointments,  and  the  whole  subject  seems  in 
a  great  measure  committed  to  the  sound  discretion  of  the  travel- 
ing preacher  in  charge,  subject  only  to  the  discipline  duty  of 
preaching  where  there  is  the  greatest  number  of  quiet,  willing 
hearers,  the  most  fruit,  and  where  the  Spirit  most  abounds;  and 
subject  to  the  superintending  control  of  the  presiding  elder, 
whose  duty  it  is  to  oversee  the  spiritual  and  temporal  business 
of  the  church;  to  take  charge  of  all  elders  and  deacons  in  his 
district,  and  to  take  care  that  the  discipline  shall  be  enforced  in 
his  district. 

As  to  the  particular  building  or  house  in  which  services  shall 
be  statedly  held,  there  is  nothing  definite  in  the  discipline,  and 
the  authority  over  it  seems  to  be  only  inferential,  arising  out  of 
the  power  of  the  preacher  in  charge  to  arrange  the  appointments 
of  service,  which  must  include  places  as  well  as  times  of  appoint- 
ment. This  vagueness  probably  flows  from  the  fact  that  at  just 
this  point  the  boundary  of  church  polity  interlocks  with  the  lines 
of  popular  support,  for  money  and  members  must  come  from  the 
laity.  Still  church  polity  reserves  a  large  share  of  control  over 
church  property,  as  will  be  seen  in  the  chapter  on  this  subject; 
with  a  sorrowful  recognition,  however,  of  its  dependence,  for 
plainness  and  economy  in  the  building  of  churches  is  enjoined, 


232  ESTATES    UPON    CONDITION    AND    LIMITATION. 

lest  the  necessity  of  raising  money  make  rich  men  necessary  to 
the  cliurch,  and  if  so  (says  the  disciple),  "  we  must  be  depend- 
ent on  tlu'm,  yea,  governed  by  them,  and  then  farewell  to 
Methodist  discipline,  if  not  doctrine,  too." 

In  order  to  preserve  control,  however,  it  is  made  the  duty  of 
the  quarterly  conferences  to  secure  the  ground  on  which  churches 
are  to  bo  built  according  to  the  deed  of  settlement,  and  to  admit 
no  charier  or  deed  that  does  not  secure  the  rights  of  the  preach- 
ers of  the  church  in  the  ministration  of  its  services  according  to 
the  true  meaning  of  the  deed  of  settlement,  the  form  of  which  is 
prescribed. 

Thus  the  effect  of  this  active  control  of  the  clerical  authorities 
of  the  church  over  preachers,  preaching,  and  church  property, 
is  to  take  from  the  society  at  large,  or  laity,  the  power  of  con- 
tinuing any  building  as  a  place  of  worship  according  to  the  rules 
and  discipline  of  this  church,  after  the  ecclesiastical  authority 
has  resolved  to  discontinue  the  services  of  its  preachers  there. 
The  society  might  choose  to  worship  there  of  their  own  head, 
and  call  a  preacher  of  their  choice  who  was  willing  to  come  with- 
out the  authority  of  his  church,  but  in  doing  so  they  would  cut 
themselves  off  from  their  church  connection,  and  would  be  wor- 
shiping there  no  longer  as  members  of  this  church  under  its 
rules  and  discipline  ;  for  to  worship  as  members  and  under  the 
discipline  they  must  accept  the  traveling  preacher  sent  to  them 
by  the  bishop.  Consequently,  the  trust  in  this  case  ceased  when 
the  proper  church  authorities,  acting  under  and  according  to  the 
rules  and  discipline,  totally  abandoned  the  building  as  a  place  of 
worship  for  the  members  of  this  church. 

The  fact  of  such  an  abandonment  was  submitted  by  the  judge 
and  found  by  the  jury.  In  his  charge  the  learned  judge  sub- 
mitted the  question  on  the  testimony  of  the  presiding  elder  and 
the  book  of  discipline  as  to  the  authority  for  so  doing;  and  on 
his  testimony  and  that  of  others  as  to  the  actual  discontinuance 
of  services  there  and  the  causes  thereof.  This  was  all  he  could 
do,  as  the  question  of  fact  belonged  to  the  jury. 

The  reverend  gentleman  had  testified  that  the  church  had 
been  abandoned  by  the  conference  in  March,  1867,  and  that  this 
action  having  been  taken  by  his  bishop  and  his  council  of  presid- 
ing elders,  and  the  preaching  removed  to  the  school-house  in  the 
village,  any  preaching  in  this  building  after  the  conference,  was 
without  the  sanction  or  authority  of  the  church. 

I  mu>t  say  I  have  not  discovered  in  the  discipline  the  precise 
ground  of  the  bishop's  authority  to  do  this;  yet  it  may  be  a 
proper  understanding  of  his  authority  as  gathered  from  the  entire 
body  of  church  law,  and  the  rule  in  the  civil  court  is  that  the 


ESTATE   UPON   LIMITATION.  233 

churches  are  left  to  speak  for  themselves  in  matters  of  dis- 
cipline and  doctrine.  Gorman  Reformed  Church  v.  Common- 
wealth, 3  Barr,  282.  But  however  the  fact  may  be,  where  the 
precise  power  is  lodged,  certain  it  is  in  this  case  this  proof  was 
made,  and  with  it  the  fact  that  the  abandonment  of  the  building 
had  also  the  express  sanction  of  the  presiding  elder  and  inferen- 
tially  the  sanction  of  the  i)rc'acher  in  charge. 

We  cannot  say,  therefore,  that  the  fact  of  abandonment  was 
submitted  without  sufficient  evidence.  The  fact  being  found  by 
the  jnry,  these  plaintitFs  —  at  the  time  of  the  removal  of  the 
building  —  were  no  longer  trustees  of  the  property  by  the  very 
terms  of  the  limitation  in  the  deed,  and  had  no  ownership  or 
estate  to  enable  them  to  maintain  this  action. 

This  is  sufficient  for  the  purpc^ses  of  this  case.  But  it  is  also 
insisted  that  these  trustees  were  superseded  by  the  election  of 
new  trustees  by  the  quarterly  conference  under  a  new  rule 
adopted  by  the  general  conference  of  1864.  We  shall  express 
no  opinion  on  this  point,  the  interest  depending  on  the  form  of 
the  deeds  made  previous  to  1864,  being  too  important  to  be 
determined  upon  a  meager  presentation  of  the  case  to  us.  It 
is  proper,  however,  to  suggest  to  the  church  authorities  that 
this  is,  perhaps,  perilous  giound  to  stand  upon.  The  church 
may  provide  a  new  mode  for  the  election  of  trustees,  and  make 
their  deeds  hereafter  conform  to  this  mode.  But  when  it  comes 
to  the  right  to  supplant  trustees  estal)lished  by  contract,  or  to  fill 
vacancies  in  a  mode  differing  from  the  terms  of  the  contract, 
which  are  the  laws  of  the  trust,  a  new  question  arises. 

A  deed  is  a  contract  inler  paries,  the  grantor  on  one  side  and 
the  trustees  on  the  other,  and  even  the  legislature  cannot  impair 
the  contract.  If  conflicts  should  arise  between  the  trustees 
nominated  or  provided  for  in  the  deed  and  those  appointed  by 
the  quarterly  conferences,  it  may  be  found  difficult  to  overthrow 
the  will  of  the  grantor  or  first  party  in  the  deed  expressed  in  this 
contract  form. 

Judgment  affirmed. 

Note.  — For  a  full  explanation  of  conditional  limitations,  see 
cases  reported  supra,  and  particularly  Brattle  Sq.  Church  v. 
Grant,  3  Gray,  142. 


234  MORTGAGES. 

CHAPTER    X. 

MORTGAGES. 

Crowell  V.  Keene,  159  Mass.  352;  34  N.  E.  405. 
King  V.  McCarthy,  50  Minn.  222;  52  N.  W.  648. 
Macauley  v.  Smith,  132  N.  Y.  524;  30  N.  E.  997. 
Lanahan  v.  Lawton,  50  N.  J.  Eq.  2H',;  23  A.  476. 
Cooli  V.  Bartholomew,  CO  Conn.  24;  22  A.  444. 
Stewart  V.  Scott,  54  Ailt.  187;  15  S.  W.  463. 
Townshend  v.  Thompson,  139  N.  Y.  152;  34  N.  E.  891. 
Turner  u.  LittlefleUl,  142  111.  630;  32  N.  E.  522. 
Magie  v.  Reynolds,  51  N.  J.  Eq.  113;  26  A.  150. 
Equitable  Life  Ass.  Soc.  v.  Bostwick,  100  N.  Y.  628. 
Union  Mut.  L.  Ins.  Co.  v.  Hanford,  143  U.  S.  187. 
'  Kennedy  v.  Moore,  91  Iowa,  39;  58  N.  W.  1066. 
Mulcahy  v.  Fenwick,  161  Mass.  164;  36  N.  E.  689. 
Watson  V.  Wymau,  161  Mass.  96;  36  N.  E.  692. 
Lanier  v.  Mcintosh,  117  Mo.  508;  23  S.  W.  787. 
Union  Trust  Co.  v.  Olrastead,  102  N.  Y.  729;  7  N.  E.  822. 

Deed  Absolute  on  Its  Face,   When  a  Mortgage. 

Crowell  V.  Keene,  169  Mass.  352;  34  N.  E.  405. 

Lathrop,  J.  This  is  a  bill  in  equity,  filed  on  May  16,  1891, 
and  amended  on  October  24th  of  the  same  year,  to  have  a  con- 
veyance executed  by  Michael  Rol)inson  to  Samuel  Keene  on 
April  14,  1870,  of  six  parcels  of  land  in  Warehara,  declared  a 
mortgage,  on  the  ground  that  the  conveyance,  though  absolute  in 
form,  was  intended  by  the  parties  as  security  for  certain  advances 
made  and  to  be  made  to  Robinson  by  Keene,  and  was  under- 
stood by  the  parties  to  be  a  mortgage.  The  case  was  heard  on 
its  merits  by  a  single  justice  of  this  court,  who  found  that  the 
deed  set  forth  in  the  bill  was  an  absolute  deed,  and  ordered  a 
decree  for  the  defendants.  At  the  request  of  the  plaintiff  the 
judge  reported  the  case  for  our  consideration  on  the  pleadings, 
and  a  full  report  of  the  evidence.  The  plaintiff's  title  to  main- 
tain the  suit  is  based  upon  an  agreement  made  by  him  on 
August  21,  1890,  with  Michael  Robinson,  by  the  terms  of 
which  Robinson  agreed  to  seil,  and  the  plaintiff  to  buy,  the  land 
contained  and  referred  to  in  the  deed  to  Keene;  "  the  validity 
of  such  deed  being  in  dispute  between  myself  and  said  Keene, 
and  it  being  understood  that  this  agreement  to  convey  applies 
only  when  and  to  the  extent  that  said  obligation,  by  agreement, 
compromise,  or  otherwise,  is  decided  in  my  favor;  I  hereby 
employing  such  attorney  or  attorneys  as  said  Crowell  may  elect, 
but  at  his  expense;  I  hereby  giving  said  Crowell  or  his  said 
attorney  a  lien  upon  my  claims  against  said  Keene   to  secure 


DEED    ABSOLUTE    ON    ITS    FACE.  235 

such  advances  as  they  may  make."  We  need  not  consider 
whether  this  agreement  gives  the  phiiiitiff  any  standing  in  court 
as  against  the  defendants,  nor  whether  the  agreement  is  not  void 
for  champerty  and  maintenance,  as  we  are  of  opinion  upon  a 
review  of  the  evidence,  that  the  finding  of  the  single  justice 
must  be  affirmed.  The  controversy  relates  to  a  transaction 
which  took  place  over  twenty  years  ago.  What  the  parties  in- 
tended was  known  to  them  alone,  and  there  is  now  no  direct 
evidence  of  such  intention,  except  the  instrument  which  they 
executed,  and  the  testimony  of  the  defendant,  Samuel  Keene, 
Michael  Robinson  having  died  before  the  bill  was  filed.  Keene 
testified  that  there  was  no  ajjreement  whatever  in  resfard  to  the 
deed  being  a  mortgage;  that  there  was  not  a  word  said  to  that 
effect;  that  Robinson  made  no  claim  that  the  deed  was  a  mort- 
gage until  1879  or  1880,  after  he  had  married  again.  Keene  was 
a  stepson  of  R()l)inson,  his  mother  being  Robinson's  wife  at  the 
time  of  the  execution  of  the  deed.  Keene  allowed  Robinson  to 
live  on  the  land  conveyed  in  1870,  and  testified  that  the  con- 
sideration for  the  conveyance  was  money  which  he  had  previously 
lent  Robinson  at  different  times.  He  continued  to  lend  him 
money  afterwards,  and  assist  him  in  various  ways. 

Keene  was  evidently  the  moneyed  tnan  of  the  family.  If  his 
testimony  is  true  the  plaintiff  has  no  case;  and  his  testimony  is 
confirmed  by  all  of  the  members  of  the  Robinson  family,  who 
testify  that  they  always  understood,  from  what  their  father  said, 
that  the  land  belonged  to  Keene. 

For  some  years  before  his  death,  Michael  Robinson  asserted 
that  the  deed  was  invalid  because  it  contained,  when  delivered, 
only  one  parcel  of  hind,  and  that  the  other  parcels  were  fraud- 
ulently added;  and  this  he  repeated  in  September,  1890,  in  a 
statement  made  under  Pub.  St.,  c.  169,  §  45,  to  perpetuate  his 
testimony.  It  is  true  that  this  statement  also  sets  forth  that 
the  deed  was  for  the  purpose  of  securing  advances  made  and 
to  be  made.  This  statement  was  put  in  evidence  by  the 
defendants,  but,  though  it  appears  that  the  deposition  of 
Michael  Robinson  was  taken  under  the  statute,  it  was  not 
put  in  evidence  by  the  plaintiff.  It  is  not  now  contended 
that  any  alteration  was  made  in  the  deed,  and  the  bill  does 
not  proceed  upon  this  theory.  The  plaintift''s  chief  reliance 
is  upon  certain  facts  which  he  contends  are  proved,  and 
are  inconsistent  with  the  theory  that  the  deed  was  intended 
as  an  absolute  conveyance,  and  which  are  only  consistent 
with  his  theory.  The  most  important  of  these  we  will 
briefly  consider:  In  July,  1870,  Robinson  executed  a  mort- 
gage   of    one    of    these    parcels    conveyed  to    Keene,    without 


236  MORTGAGES. 

mentioning  the  prior  conveyance,  and  with  full  covenants  of 
warranty.  In  October,  1878,  he  executed  a  mortgage  of  this 
parcel,  and  of  another  parcel,  in  the  same  manner.  These  acts 
are  relied  on  as  showing  acts  of  dominion  on  the  part  of  Robin- 
son. But,  if  they  are  inconsistent  with  one  theory,  tliey  were 
also  inconsistent  with  the  other  theory.  They  repudiate  the 
conveyance  entirely.  One  of  these  mortgages  was  recorded 
prior  to  the  recording  of  the  deed  to  Keene,  and  was  therefore  a 
valid  incumbrance  upon  the  land.  The  other  mortgage  was 
recorded  subsequently.  Robinson  also  sold  a  parcel  of  land 
which  was  a  part  of  the  lots  embraced  in  the  two  mortgages. 
Keene  was  present  when  the  title  was  passed,  paid  the  second 
mortgage,  in  whole  or  in  part,  and  an  assignment  of  this 
mortgage  was  made  to  his  wife  through  a  third  person, 
and  this  mortgage  has  since  been  foreclosed.  The  testimony 
tends  to  show  acquiescence  on  his  part  at  this  time  in  Ro- 
binson's actions,  or  at  least  that  he  did  not  see  fit  to  repudi- 
ate them.  This  settlement,  however,  was  10  years  after  the 
date  of  his  deed,  and  what  he  then  chose  to  do  for  the  honor 
of  the  family  has  but  a  remote  bearing  upon  the  main  question 
in  issue. 

The  plaintiff  further  contends  that  the  fact  that  Robinson  was 
indel)ted  to  Keene  in  1870  was  of  itself  evidence  that  the  deed 
was  intended  as  a  mortgage.  No  authority  is  cited  in  support  of 
this  proposition,  and  there  is  no  presumption  of  law  either  way. 
As  a  matter  of  evidence  the  fact  is  of  but  slight  importance. 

It  appears  that  the  land  was,  during  Robinson's  life,  taxed  to 
him,  and  was  afterwards  taxed  to  bis  heirs.  The  taxes  were,  how- 
ever,—  at  least  in  part,  —  paid  by  Keene.  We  do  not  see  that 
the  fact  that  Keene  did  not  notify  the  assessor  of  the  change  of 
title  has  any  tendency  to  show  that  the  deed  was  a  mortgage 
deed,  instead  of  an  absolute  deed. 

The  plaintiff  further  relies  on  the  fact  that  Robinson  cut  wood 
on  the  land  from  time  to  time  during  the  twenty  years  before 
the  hearing.  Keene,  however,  testified  that  he  gave  him  that 
liberty,  that  it  was  Robinson's  means  of  support,  and  that  it  was 
done  as  "  a  family  understanding." 

Evidence  was  introduced  of  oral  admissions  made  by  Keene 
that  he  held  the  title  for  the  benefit  of  Michael  Robinson  and  his 
heirs  ;  that  he  had  advanced  money  from  time  to  time,  **  and 
was  holding  the  land  for  the  debts."  In  May,  1880,  Keene 
wrote  to  Michael  Robinson:  "My  only  purpose  is  for  your 
benefit,  and  have  acted  upon  the  advice  of  your  friends  in 
Wareham  to  let  it  remain  as  it  is  for  the  present,  in  order  to 
save  the  farm  for  you."     In  February,  1880,  also,  Keene  wrote 


CONDITIONAL  SALE  OK  MORTGAGE.  237 

to  Robinson:  "  When  you  are  in  a  position  to  pay  my  balance  I 
will  talk  about  a  transfer.  You  say  1  can't  have  all.  I  only 
want  my  due,  and  if  you  can  find  any  one  to  let  you  have  money 
as  cheap  as  I  have  in  the  past  you  are  fortnnate.  It  has  not 
been  my  intention  to  deprive  you  [of]  liberty  of  the  farm,  in 
the  least."  This  last  sentence,  Keene  testified,  related  to  the 
fact  that  he  gave  Robinson  the  use  of  the  farm.  While  these 
oral  and  written  admissions  have  a  strong  tendency  to  support 
the  plaintiff's  theory,  they  are  also  consistent  with  the  theory 
that  the  deed  was  intended  as  an  absolute  conveyance,  and  that 
Keene  intended,  when  he  was  made  whole,  to  reconvey  the  land, 
though  under  no  oblioration  to  do  so. 

Michael  Robinson  died  November  15,  1890,  and  after  his 
death  and  before  Keene  knew  of  the  agreement  made  by  Robin- 
son with  Crowell,  he  procured  releases  from  Robinson's  widow 
and  from  his  children  of  any  interest  they  might  have  in  the 
land.  The  plaintiff  relies  upon  this  fact  as  being  consistent  oidy 
with  his  theory  of  the  case.  It  appeals,  however,  that  at  this 
time  there  was  an  action  pending  against  Keene  in  Plymouth 
County,  brought  by  Michael  Robinson,  but  promoted  by  the 
present  plaintiff,  relating  to  this  property,  though  precisely  what 
the  action  was  is  not  disclosed,  and  that  Keene  acted  under  the 
advice  of  counsel  in  obtaining  the  release,  for  the  purpose  of 
controlling  that  case. 

On  the  whole  evidence,  we  cannot  say  that  the  finding  of  the 
single  justice,  who  heard  the  witnesses,  and  who  was  better  able 
to  judge  of  their  credulity,  from  their  appearance  and  manner 
of  testifying,  than  we  can  be,  was  wrong.  Chase  v.  Hubbard, 
153  Mass.  91;  26  N.  E.  Rep.  433,  and  cases  cited;  Loud  v. 
Barnes,  154  Mass.  344;  28  N.  E.  Rep.  271.     Bill  dismissed. 


Conditional  Sale  or  Mortgage. 

King  V.  McCarthy,  50  Minn.  222;  52  N.  W.  648. 

Mitchell,  J.  On  the  trial  of  this  action  the  sole  issue  was 
whether  a  conveyance  from  plaintiff's  intestate  to  the  defendant 
Richard  W.  Bell  (the  grantor  of  his  codefendants,  Mary  Mc- 
Carthy and  Mary  Bell)  was  a  mortgage  on  a  conditional  sale, 
and  the  only  question  on  this  appeal  is  whether  the  finding  of 
the  court  that  it  was  the  former,  and  not  the  latter,  was  justified 
by  the  evidence.  No  conclusive  test  of  universal  application 
can  be  suggested  to  determine  whether  such  transactions  are 
mortgages  or  conditional  sales.  Each  case  must  be  decided  in 
view  of  its  own  peculiar  circumstances.     The  true  test  is,  what 


238  MORTGAGES. 

was  the  intention  of  the  parties?  Did  they  intend  security  or 
sale?  This  is  to  be  gathered  from  the  surrounding  facts  and  the 
situation  of  the  parties,  as  well  as  from  the  written  memorials 
of  the  transaction.  And  while  it  is  undoubtedly  true  that,  in 
order  to  convert  what  appears  on  the  face  of  the  written  con- 
tract to  be  a  sale  into  a  mortgage  the  evidence  should  be  clear 
that  the  real  intention  of  the  parties  was  to  execute  a  mortgage, 
yet  the  inclination  of  the  courts  is  to  construe  the  contract  to 
bo  a  mortg.ige  rather  than  a  conditional  sale,  whenever  the 
evidence  will  reasonably  admit  of  it.  We  shall  not  attempt  any 
extended  discussion  of  the  evidence.  Notwithstanding  the 
testimony  of  Bell  (which  was  the  only  direct  evidence  as  to  the 
negotiations  between  the  parties  at  the  time  of  the  conveyance) 
that  he  refused  to  take  a  mortgage,  and  that  the  understand- 
ing was  that  it  was  a  sale  conditioned  that  McCarthy  might  buy 
the  property  back  within  one  year  upon  paying  what  he  (Bell) 
should  advance  to  remove  the  incumbrances,  yet  an  examination 
of  the  entire  record  satisfies  us  that  the  real  intention  and  under- 
standing of  the  parties  was  that  Bell  was  to  advance  for  McCarthy 
the  money  necessary  to  relieve  the  property  of  incumbrances, 
and  take  the  deed  as  security  ;  in  other  words,  that  Bell  was  to 
carry  the  property  for  the  McCarthys,  or,  as  Bell  himself 
expressed  it  in  one  place,  he  was  "  to  clear  up  the  entire  prop- 
erty for  them."  The  subsequent  conduct  of  the  parties  in  the 
treatment  of  the  property  tends  strongly  to  prove  that  the  under- 
standing of  both  parties  was  that  the  property  still  belonged  to 
the  McCarthys,  and  that  Bell  merely  held  the  title  to  secure  his 
advances.  It  is  true  that  Bell  took  control  of  it  so  far  as  to  col- 
lect most  of  the  rents.  But  these  were  all  needed,  as  he  says,  to 
pay  taxes  and  assessments.  It  also  appears  that  the  McCarthys 
still  continued  to  occupy  part  of  the  property  as  a  residence,  and 
it  does  not  appear  that  they  ever  paid,  or  that  Bell  ever  demanded 
any  rent  from  them.  And  finally,  in  1887,  nearly  two  years 
after  the  alleged  year's  option  to  buy  the  property  back  had 
expired.  Bell,  after  consultation  with  the  widow  of  McCarthy  and 
with  her  consent,  executed  a  mortgage  on  the  property,  on  which 
he  realized  enough  to  reimburse  him  for  all  he  had  advanced,  and 
then,  without  receiving  any  consideration,  quitclaimed  the  prop- 
erty to  McCarthy's  widow  and  daughter,  taking  back  from 
them  a  bond,  with  security,  to  indemnify  him  against  the 
mortgage  which  he  had  executed  on  the  property,  and  against 
any  claim  of  the  creditors  of  the  estate  of  Jeremiah  C.  Mc- 
Carthy. He  testifies  that  he  did  this  at  the  solicitation  of  his 
parents,  for  certain  family  considerations,  his  brother  having 
married  McCarthy's  daughter;  but  men  do  not  often,  for  such 


ABSOLUTE   DEED  WITH    SEPARATE    DEFEASANCE  CLAUSE       239 

reasons,  give  away  property  worth  $35,000.  His  conduct  can 
be  much  more  reasonably  accounted  for  upon  the  theory  that  it 
was  the  understanding  that  he  held  the  property  merely  as 
security  for  his  advances,  and,  these  having  been  reimbursed  out 
of  the  proceeds  of  the  mortgage,  he  had  no  further  claim  upon 
it,  and  therefore  transferred  it  to  McCarthy's  family  to  whom  it 
rightfully  belonged.  It  is  true, as  counsel  claims, that  the  character 
of  the  transaction,  whether  a  mortgage  or  conditional  sale,  was 
fixed  at  its  inception  ;  but  the  subsequent  conduct  of  the  parties  in 
such  cases  may  throw  a  flood  of  light  upon  their  original  inten- 
tion and  understanding.  Another  circumstance  entitled  to 
weight  is  the  disproportion  between  the  amount  Bell  was  to 
advance  to  remove  incumbrances  and  the  value  of  the  property. 
The  amount  of  the  incumbrances  did  not  exceed  $10,000  while 
Bell  admits  that  at  the  time  he  obtained  the  deed  from  McCarthy 
the  property  was  worth  22,000.  It  is  often  laid  down  in  the 
books  that  the  existence  of  a  debt  is  the  test  whether  a  trans- 
action is  a  mortgage  or  a  conditional  sale,  and  much  stress  is 
laid  by  defendant's  counsel  upon  the  fact  that  there  was  no  note 
or  bond  given  by  McCarthy  as  evidence  of  any  debt  to  Bell,  and 
that  there  was  no  covenant  or  any  personal  obligation  to  pay 
what  Bell  should  advance  to  clear  the  property.  This,  if  true, 
would  be  a  circumstance  of  no  inconsiderable  importance,  but  it 
is  not  complete  or  conclusive  evidence  that  a  transaction  was  a 
sale,  and  not  a  mortgage.  This  court  has  twice  held  that,  where 
the  real  nature  of  the  transaction  is  a  loan  advanced  upon  the 
security  of  real  estate  conveyed  to  the  party  making  the  loan,  it 
is  none  the  less  a  mortgage  because  the  advance  is  made  wholly 
upon  the  security,  and  without  any  personal  obligation  on  the 
part  of  the  ))orrower.  Fisk  v.  Stewart,  24  Minn.  97;  Niggeler 
V.  Maurin,  34  Minn.  118;  24  N.  W.  Rep.  369.  See,  also. 
Brown  v.  Dewey,  1  Sandf.  Ch.  56.  But  it  is  not  necessary  to 
go  that  far  in  order  to  sustain  the  finding  in  this  case,  for  we  are 
satisfied  that  the  evidence  would  warrant  the  conclusion  that  the 
relation  of  debtor  and  creditor  was  actually  created  between 
McCarthy  and  Bell,  and  that  there  was  an  implied  promise  on 
part  of  the  former  to  lepay  the  latter  as  for  money  paid  at  his 
request  and  for  his  use.     Order  atfirmed. 


Absolute  Deed  with   Separate   Defeasance  Clause,  —  no  Ex- 
press   Covenant    to   Pay. 

Macauley  v.  Smith,  132  N.  Y.  524;  30  N.  E.  997. 

Opinion  by  Landon,  J. 

The  action  was  to  have  certain  conveyances  of  real  estate  by  war- 


240  MORTCJAOES. 

ranty  deeds  declared  to  be  morti;ai;es,  and  to  have  the  real  estate 
adjudged  to  be  subject  to  the  lien  of  a  certain  judgment  recovered 
by  the  plaintiff  a<^ainst  the  grantor  in  such  deeds,  and  an  execu- 
tion issued  thereon.  The  action  in  which  the  judgment  vvas  en- 
tered was  for  the  recovery  of  money  only,  and  was  commenced 
in  August,  1879,  by  this  plaintiff  against  Lucilia  Tracy  by  pub- 
lication of  a  summons  against  the  defendant  therein  as  a  non- 
resident, and  an  attachment  was  at  the  same  time  issued  against 
her  property,  which  was  in  form  levied  upon  the  real  estate  in 
question.  Judgment  by  default  was  entered  in  that  action  in 
July,  1883,  and  an  execution  issued  thereon  to  the  sheriff  of  the 
county  where  the  property  was  situated,  which  execution  has 
since  been  held  by  the  sheriff.  On  and  prior  to  the  6th  day  of 
July,  1871,  Lucilia  Tracy  was  the  owner  and  in  possession  of 
two  parcels  of  real  estate  on  Alexander  street,  in  the  city  of 
Rochester,  upon  one  of  which  parcels  there  were  two  mortgages 
of  $5,000  and  $2,000  respectively.  On  the  5th  day  of  July, 
1871,  she  entered  into  an  agreement  in  writing  with  the  defend- 
ants, Robert  H.  Smith  and  Calvin  Tracy,  and  one  Slocum  How- 
land,  since  deceased  (who  is  represented  in  this  action  by  the 
defendants,  William  and  Emily  Rowland,  as  his  executors), 
whereby,  in  consideration  of  and  for  the  purpose  of  securing 
a  loan  of  $8,240,  she  agreed  to  execute  and  deliver  to  them  a 
good  and  sufficient  warranty  deed  of  both  parcels  of  land  above 
mentioned,  and  the  agreement  proceeds  as  follows:  '*  And  the 
said  Rowland,  Smith,  and  Tracy,  in  consideration  of,  and 
before  the  execution  and  delivery  of,  said  deed,  hereby  agree 
to  advance  the  said  sum  of  $8,240  (in  a  manner  specified) 
to  the  said  Lucilia  Tracy.  It  is  also  here!)y  agreed,  by  and 
between  the  parties  herein,  that  the  said  deed  is  to  be  and  is 
a  security  for  said  loan  for  a  term  not  exceeding  one  year  from 
the  date  of  said  deed,  which  is  to  be  hereafter  executed  ;  and 
that  upon  the  repayment  of  said  sum  of  $8,240,  with  interest, 
within  or  at  the  expiration  of  said  one  year,  by  the  said  Lucilia 
Tracy,  her  heirs,  executors,  administrators,  or  assigns,  the 
said  Rowland,  Smith,  and  Tracy,  their  and  each  of  their  heirs, 
executors,  administrators,  or  assigns,  are  to  reconvey  said 
premises  so  conveyed  to  said  Lucilia  Tracy,  her  heirs,  executors, 
administrators,  and  assigns,  free  from  all  incumbrances  upon 
said  premises  at  the  time  of  the  conveyance  thereof  as  aforesaid 
by  the  said  Lucilia  Tracy."  "  And,  in  case  the  said  sum 
of  $8,230  shall  not  be  repaid  during  or  at  the  expiration  of 
one  year  as  aforesaid,  then  it  is  understood  and  agreed  that 
the  said  deed,  so  as  aforesaid  to  be  executed  by  the  said 
Lucilia  Tracy,  is  to  become  and  be  a  deed  absolute,  and  the  said 


ABSOLUTE   DEED  WITH    SEPARATE   DEFEASANCE  CLAUSE.       241 

Howhind,  Smith,  and  Tracy,  or  their  heirs  and  assigns,  are  to 
become  and  be  the  owners  thereof  in  fee  simple  absolute." 
Accordingly  on  the  following  day  Miss  Tracy  executed  and 
delivered  to  the  other  parties  to  the  agreement  deeds  of  the 
two  parcels  of  land,  containing  the  usual  covenants  of  warranty, 
which  were  on  the  same  day  duly  recorded  in  the  clevk's  office 
of  Monroe  County,  in  and  by  one  of  which  deeds  the  grantees, 
as  part  consideration  of  the  conveyance,  assumed  the  payment 
of  the  two  mortgages  above  mentioned,  but  did  not  covenant  to 
pay  them.  The  loan  was  not  repaid,  and  in  December,  1872, 
the  grantor  remained  in  pf)ssession  of  the  premises  for  about 
two  years  after  the  date  of  the  deeds,  and  then  quit  and  sur- 
rendered possession  of  the  premises  to  the  grantees,  who 
remained  in  possession  thereof,  by  tenants  or  otherwise,  until 
the  1st  of  January,  1875,  when  they  sold  and  conveyed  the 
same  to  the  defendant,  the  New  York  Baptist  Union  for  Minis- 
terial Education,  which  has  ever  since  been  in  possession  of  the 
premises,  claiming  title  thereto.  The  debts  for  which  plaintiff 
obtained  judgment  against  Lucilia  Tracy  were  contracted  prior 
to  January  1,  1872.  The  agreement  of  July  5,  1871,  was  never 
recorded,  and  the  defendant,  the  Baptist  Union,  had  no  notice 
thereof  at  the  time  of  its  purchase  of  the  property.  It  is  con- 
ceded on  the  part  of  the  plaintiff  that  her  judgment  against  the 
grantor  in  the  deeds  above  mentioned  is  of  no  force  or  effect, 
for  the  purposes  of  this  action,  unless  as  a  judgment  in  reniy  by 
virtue  of  a  levy  of  the  attachment  upon  the  property  in  ques- 
tion.    Code  Civil  Proc,  §  707. 

The  agreement  which  antedated  the  deeds  by  one  day, 
and  expressed  their  intent  and  purpose,  should  be  read  in 
connection  with  them.  Thus  read,  the  deeds  are  shown  to 
have  been  given  by  Lucilia  Tracy  to  Rowland,  Smith,  and 
Tracy,  *'  for  the  purpose  of  securing,  and  in  consideration 
of  said  loan  of  $8,240,"  made  by  the  grantees  to  the  grantor; 
and  "that  the  said  deed  *  *  *  is  a  security  for  said 
loan  lor  a  term  not  exceeding  one  year  from  the  date  of  said 
deed,  *  *  *  and  that  upon  the  repayment  of  said  sum 
of  $8,240,  with  interest,  within  or  at  the  expiration  of 
one  year,  by  the  said  Lucilia,  *  *  *  the  said  Rowland, 
Smith,  and  Tracy  are  to  reconvey  said  premises  to  said 
Lucilia;  »  *  *  and,  in  case  said  sum  of  $8,240  shall  not  be 
repaid  during  or  at  the  expiration  of  one  year  as  aforesaid, 
then  it  is  understood  and  agreed  that  the  said  deed  *  *  * 
is  to  become  and  be  a  deed  absolute,  and  the  said  Rowland, 
Smith,  and  Tracy  are  to  become  and  be  the  owners  in  fee  simple 
absolute."     The    deeds    are    thus    clearly  shown  to  have  been 

16 


242  MORTGAGES. 

intended  as  mortgages.  This  conclusion  is  also  inferable  from 
the  facts.  The  premises,  at  the  dale  of  the  deeds  were  worth 
$30,000.  The  judi^ments  against  the  premises  were,  by  the 
terms  of  the  agreement,  to  be  paid  from  the  money  loaned,  and 
presumably  were  either  paid  or  their  amount  retained  by  the 
grantees  from  the  $8,240.  The  amount  of  the  outstanding 
mortgages  against  the  premises  was  $7,000.  It  is  not  presum- 
able that  Lucilia  Tracy  intended  to  sell  property  worth  $30,000 
for  $15,240.  The  grantor  remained  in  possessionof  the  premises 
for  about  two  years  after  the  delivery  of  the  deeds.  She  was  em- 
barrassed and  straitened  for  money.  Stress  is  laid  by  the  defend- 
ants upon  the  fact  that  the  grantor  did  not  expressly  covenant  to 
repay  the  money.  The  cases  are  to  the  effect  that  this  is  one  of 
several  circumstances  to  be  considered  (Horn  v.  Keteltas,  46 
N.  Y.  605;  Morris  v.  Budlong,  78  N.  Y.  552  ;  Brown  v.  Dewey, 
1  Sandf.  Ch.  57)  ;  and  here  it  is  to  be  considered  in  connection 
with  the  repeated  statement  that  the  money  to  be  advanced  by 
the  grantees  is  a  loan,  and  that  "  said  deed  is  a  security  for  said 
loan,  for  a  term  of  not  exceeding  one  year,"  and  that  upon 
payment  the  grantees  should  reconvey  to  the  grantor.  It  is 
plain  that  repayment  of  the  loan  was  contemplated.  Nothing  is 
said  of  the  repayment  of  purchase  money,  and  there  is  nothing 
in  the  agreement  indicating  that  the  money  advanced  by  the 
grantees  was  purchase  money,  except  that,  in  case  said  sum  of 
$8,240  (previously  termed  a  loan)  should  not  be  repaid  at  the 
expiration  of  one  year,  "  then  it  is  understood  and  agreed  that 
the  said  deed  is  to  become  and  be  a  deed  absolute;  "  thus  clearly 
indicating  that  at  the  date  of  the  transaction  said  sum  was  not 
purchase  money,  and  said  deed  was  not  a  deed  absolute,  but  was 
to  become  so,  in  case  of  nonpayment  of  the  loan.  Clearly, 
upon  the  undisputed  facts,  the  deeds  were  a  mortgage  to  secure 
the  money  loaned,  and  the  trial  court  erred  in  refusing  the 
plaintiff's  request  so  to  find.  The  agreement  that  the  nonpay- 
ment of  the  loan  within  the  time  specified  should  convert  the 
mortgage  into  an  absolute  deed  did  not  have  that  effect.  The 
agreement  to  turn  a  mortgage  into  an  absolute  deed,  in  case  of 
default,  is  one  that  finds  no  favor  in  equity. 

The  maxim,  "  once  a  mortgage  always  a  mortgage,"  governs 
the  case.  Horn  v.  Keteltas,  stiprm;  Murray  v.  Walker,  31 
N.  Y.  400  ;  Carr  v.  Carr,  51  N.  Y.  251  ;  Remsen  v.  Hay,  2  Edw. 
Ch.  535  ;  Clark  v.  Henry,  2  Cow.  324  ;  Morris  v.  Nixon,  1  How. 
118;  Villa  v.  Rodriguez,  12  Wall.  323;  4  Kent  Comm.  143. 
Since  the  deeds  were  a  mortgage,  the  title  did  not  pass  to  the 
grantees,  but  remained  in  Lucilia  Tracy.  Barry  v.  Insurance 
Co.,  110  N.  Y.  1 ;   17  N.  E.  Rep.  405  ;  Thorn  v,  Sutherland,  123 


ABSOLUTE    DEED    WITH    SEPARATK    DEFEASANCE    CLAUSE.     248 

N.  Y.  236;   25  N.  E.  Rep.  362;    Shattuck  v.  Ba.scom,  105  N.  Y. 
46;    12  N.  E.  Rep.  283. 

The  levy  under  the  plaintiff's  attachment  was  therefore  upon 
Mrs.  Tracy's  land,  to  which  she  had  the  legal  title.  It  was  not 
merely  an  attenijjted  levy  upon  her  equitable  right  to  obtain  title. 
As  against  Howland,  Smith,  and  Tracy,  the  levy  was  valid,  and 
the  judgment  and  execution  which  followed  the  attachment  be- 
came a  specific  lien  upon  the  land  itself,  and  the  land  could  be 
sold  upon  execution.  Howland,  Smith,  and  Tracy  conveyed  the 
premises,  before  the  attachment  was  issued,  to  tlie  defendant, 
the  New  York  Baptist  Union  for  Ministerial  Education.  This 
defendant,  by  its  answer,  admits  that  $3,000  of  the  purchase 
money,  with  interest  from  January  1,  1883,  remains  unpaid,  and 
that  $1,550  of  the  principle  of  one  of  the  mortgages  upon  the 
premises  given  by  Mrs.  Tracy  also  remains  unpaid.  This  de- 
fendant, in  order  to  maintain  the  defense  that  it  is  a  bona  fide 
purchaser  without  notice  of  plaintiff's  rights,  must  have  paid  all 
the  purchase  money.  Sargent  v.  Apparatus  Co.,  46  Hun,  19; 
Harris  v.  Norton,  16  Barb.  264;  Jewett  v.  Palmer,  7  Johns.  Ch. 
65;  Jackson  v.  Caldwell,  1  Cow.  622;  Boone  v.  Chiles,  10  Pet. 
179;  Patten  v.  Moore,  32  N.  H.  382.  In  equity  it  has  not 
completed  its  purchase,  but  to  the  extent  of  its  payments 
innocently  made  before  notice  of  plaintiff  s  claim,  is  entitU'd  to 
protection.  It  may  therefore  retire  from  the  transaction  with- 
out actual  loss,  and  without  farther  impairing  the  rights  of 
the  plaintiff.  The  action  is  in  aid  of  plaintiff's  execution.  Its 
object  is  not  to  reach  any  cquitabl(3  assets  of  Mrs.  Tracy, 
but  to  strip  from  her  legal  title  to  the  premises  in  question  the 
obstructions  created  by  the  deeds  by  which  such  title,  ap[)ar- 
ently,  but  not  in  fact,  passed  from  her  to  Howland,  Smith,  and 
Tracy,  and  from  them  to  the  Baptist  Union;  and  thus  to  show 
that  the  lien  acquired  by  plaintiff's  attachment  of  the  premises, 
and  perfected  by  her  judgment  and  execution,  was  valid,  and 
therefore  may  now  be  enforced  free  from  the  obstructions 
which  seem  to  defeat  it.  Such  an  action  is  within  the  equitable 
jurisdiction  of  the  court.  Beck  v.  Burdett,  1  Paige,  305;  Heye 
V.  Bolles,  33  How.  Pr.  266;  Rinchey  v.  Stryker,  28  N.  Y.  45; 
Frost  V.  Mott,  34  N.  Y.  253.  Thurber  v.  Blanck,  50  N.  Y.  80, 
does  not  hold  otherwise,  but  does  hold  that  the  attachment, 
to  be  effective,  must  operate  upon  legal  rights  —  the  j)recise 
position  of  the  plaintiff  here.  The  judgment  should  be  re- 
versed, and  a  new  trial  granted  costs  to  abide  the  event.  All 
concur. 


244  MORTGAGES. 

Mortgage  Debt  May  Be  Antecedent,  Contemporaneous,  or 
Prospective  —  Constructive  Notice  in  the  Case  of  a  Mort- 
gage for  Future  Advances. 

Lanahan  v.  Lawtoii,  50  N.  J.  Eq.  27G;  23  A.  470. 

Pitney,  V.  C.  This  is  a  bill  to  foreclose.  It  is  founded  on 
a  mortgage  executed  by  the  defendant,  Walter  E.  Lawtoii,  to 
the  complainants'  intestate,  John  C.  Gratilin,t()  secure  $150,000, 
in  throe  years  from  its  date.  It  is  d;ited  on  the  5th  of  July, 
1884,  and  was  recorded  on  the  18th  of  March,  1887,  nearly  three 
yeais  later.  The  defendant  Lawton  does  not  appear,  and  a 
decree  pro  con/esso  went  against  him.  The  other  defendants 
who  have  answered  are  judgment  creditors  of  Lawton,  under 
proceedings  in  attachment  begun  March  17,  1887,  one  day 
before  the  record  of  complainant's  mortgage,  and  set  up  several 
defenses,  which  may  be  classified  as  follows:  Firsts  that  the 
mortgajje  was  never  delivered  by  Lawton  to  Grafflin  ;  second. 
that  neither  $150,000  nor  any  other  sum  was  advanced  by 
Grafflin  at  the  date  of  the  mortgage  to  Lawton ;  third,  that,  if 
ever  delivered,  it  was  kept  off  the  record  until  the  date  of  its 
record  for  the  purpose  of  enabling  Lawton  to  obtain  mercantile 
credit  on  the  strength  of  the  unincumbered  ownership  of  the 
property  which  it  covers,  and  that  the  indebtedness  of  the  several 
defendants  was  incurred  as  a  consequence,  in  the  belief  that 
Lawton  was  the  owner  of  the  premises  without  incumbrnnce; 
fourth,  that,  if  given  to  secure  a  running  account  for  present 
and  future  advances,  nothing  is  due  on  that  account ;  fifth,  that 
the  suits  which  resulted  in  the  several  judgments  held  by 
the  defendant  were  commenced  by  foreign  attachment,  which 
was  levied  on  the  Nth  of  March,  1887,  one  day  before  the 
complainants'  mortgage  was  recorded,  and  thus  the  defend- 
ant lost  his  property;  sixtli,  that  complainant's  testator  nmst 
be  held  to  have  waived  any  rights  he  had  as  a  mortgage 
creditor  by  himself  issuing  an  attachment  on  the  19th  of 
March,  1887,  and  attaching  the  same  premises,  and  in  coming 
in  as  a  creditor  under  the  attachment  of  March  17th,  and 
obtaining  judgment  for  the  only  debt  which  he  has  against 
Lawton. 

The  facts  are  that  Mr.  Grafflin  was  a  wealthy  manufacturer, 
residing  and  engaged  in  business  at  Baltimore,  and  that  Lawton 
was  a  dealer  in  fertilizers,  livino;  and  doing  business  in  New 
York.  For  some  time  prior  to  the  date  of  the  mortgage  in 
question,  Grafflin  had  been  in  the  habit  of  making  advances  of 
money  to  Lawton,  and  also  of  loaning  him  commercial  paper 
which  he  (Grafflin)  had  taken   in  the  course  of  business,  and 


MORTGAGE  DEBT  MAY    BE  ANTECEDENT,  ETC.       245 

which  he  loaned  to  Lawton  before  its  maturity,  and  which  Law- 
ton  procured  to  be  discounted  for  his  own  use  and  benefit.  On 
the  30th  of  June,  1884,  six  days  before  the  date  of  the  mort- 
gaoje,  Mr.  Lawton  was  indebted  to  Mr.  Grafiiin  in  the  sum  of 
$59,689.82  for  advances  in  cash  and  interest  up  to  that  date, 
and  nearly  $50,000  for  commercial  paper  before  that  time 
loaned  to  Mr.  Lawton.  Lawton,  in  addition  to  his  dealing  in 
fertilizers,  had  purchased  a  large  tract  of  land  in  Bergen  County, 
which  he  had  devoted,  or  was  about  to  devote,  to  the  purpose 
of  making  brick;  and  on  the  11th  of  July,  in  the  absence  of 
Mr.  Grafflin,  he  went  before  a  commissioner  of  deeds  for  New 
Jeisey,  residing  in  New  York,  and  executed  the  bond  and  mort- 
gage in  question.  How  it  came  into  the  possession  of  Mr. 
Grafflin  does  not  appear  ;  but  it  does  appear  in  the  most  satis- 
factory manner,  that  it  did  come  into  his  possession  shortly 
afterwards,  without  being  recorded,  and  was  by  him  placed 
among  his  valuable  papers  and  preserved  until  the  17th  of 
March,  1887,  when,  upon  the  receipt  by  him  of  a  telegram  from 
Lavvton's  confidential  clerk  and  cashier  that  Lawton  had  ab- 
sconded, he  (Grafflin)  took  the  bond  and  mortgage  from  the 
safe,  proceeded  directly  to  New  York,  and  the  next  day  (March 
18th)  caused  the  mortgage  to  be  recorded  in  the  Bergen  County 
clerk's  office.  In  the  mean  time,  and  on  the  1st  of  January, 
1885,  the  balance  due  from  Lawton  to  Grafflin  had  increased  to 
about  $135,000,  and  remained,  with  some  fluctuations,  at  about 
that  amount,  until  the  time  the  mortgage  was  recorded.  On 
the  17th  of  March,  1887,  the  Commercial  National  Bank,  one  of 
the  defendants,  issued  an  attachment  out  of  the  Circuit  Court  of 
the  County  of  Bergen  against  Lawton,  and  the  sheriff  attached 
the  mortgaged  premises.  On  the  18th  of  March,  Grafflin,  as 
above  stated,  recorded  his  mortgage,  and  on  the  19th  he  caused 
an  attachment  against  Lawton  to  be  issued  out  of  the  same 
court.  Whether,  under  these  two  writs,  any  other  property 
besides  these  mortgaged  premises  was  attached,  does  not  appear. 
The  object  of  the  independent  attachment  by  Grafflin  is  mani- 
fested by  what  followed.  On  the  5th  of  April,  1887,  he  filed 
a  bill  in  this  court  to  set  aside  a  conveyance  which  had  been 
made  by  Lawton  on  the  1st  of  March,  1887,  and  recorded  on 
the  5th  of  March,  1887,  to  the  New  York  &  New  Jersey  Brick 
Company,  and  a  mortgage  given  by  the  brick  company,  of 
the  same  date  and  record,  to  the  Metropolitan  Trust  Com- 
pany, to  secure  the  sum  of  $950,000;  and  such  proceedings 
were  had  in  that  suit  that  on  the  9th  of  June,  1890,  this 
court  decreed  that  the  conveyance  and  mortgage  just  men- 
tioned  were    null    and   void,   and    should    be    set  aside,    and, 


246  MORTOAOB6. 

furthor,  that  tho  attachment  issued  at  the  suit  of  the  Commer- 
cial National  Bank  was  a  valid  lien  and  incumbtanco  upon  the 
premises,  and  that  when  the  premises  were  sold  by  the  auditor  in 
attachment  the  sale  should  be  subject  to  the  mortgage  made  by 
Lawton  to  Grafliin.  The  judgment  creditors,  defendants  in  this 
suit,  who  defended,  were  not  parties  to  that  bill.  Grafflin  died 
in  August,  1888,  and  letters  of  administration,  with  the  will 
annexed,  were  issued  to  the  complainants,  and  they  were  substi- 
tuted complainants  in  the  suit  of  Grafflin  against  Lawton,  just 
mentioned,  before  decree,  and  after  decree  in  that  suit  filed  this 
bill.  In  the  attachment  suit  commenced  by  the  Commercial 
National  Bank,  in  which  Grafflin  appeared  as  a  creditor,  he 
obtained  judgment  for  $135,407.63.  Lawton  has  never  been 
heard  of  since  he  absconded,  which  circumstance,  together  with 
the  death  of  Grafflin,  leaves  the  case  bare  of  any  evidence 
as  to  what  the  understanding  was  between  the  parties  with 
regard  to  this  mortgage,  or  why  it  was  not  recorded.  Mr. 
Grafflin's  confidential  clerk  —  a  Mr.  Rogers  —  was  sworn  as 
a  witness.  He  kept  the  account  of  the  loans  made  by  Grafflin 
to  Lawton;  he  also  had  the  custody,  for  part  of  the  period 
betvveen  its  date  and  record,  of  tho  mortgage  and  accompany- 
ing bond  in  question.  He  has  no  personal  knowledge  of 
how  these  papers  were  passed  from  the  hands  of  Lawton 
to  Grafflin,  nor  upon  what  understanding.  Mr.  Grafflin's 
brother-in-law,  —  one  Keener,  —  who  was  acting  for  him  in 
some  matters  about  that  time,  is  also  dead.  Grafflin  himself 
was  at  the  time  quite  ill. 

This  state  of  the  evidence  leaves  the  object  of  the  mortgage 
altogether  a  matter  of  inference;  but  I  think  that  the  established 
facts  of  the  indebtedness  from  Lawton  to  Grafflin,  at  the  date 
of  the  mortgage,  and  its  continuance  and  increase,  lead  fairly  and 
legitimately  to  the  inference  that  the  mortgage  was  given  to 
secure  that  indebtedness,  and  such  future  indebtedness  as  might 
arise,  and  justify  me  in  finding  so  as  a  matter  of  fact.  The 
absence  of  Lawton  and  the  death  of  Grafflin  account  for  the 
absence  of  any  evidence  to  show  why  the  mortgage  was  not 
placed  on  record.  The  proof  shows  that  Mr.  Grafflin  was  quite 
ill  about  that  time,  and  he  must  have  relied  upon  Mr.  Lawton  to 
make  him  secure,  and  although  Mr.  Rogers  is  quite  positive  that 
Grafflin  himself  handed  him  the  bond  and  mortgage  for  deposit 
among  his  valuable  papers  some  time  not  very  long  after  their 
date,  it  is  not  difficult  to  believe  that  Mr.  Grafflin  did  not 
observe  that  the  mortgage  had  not  been  recorded,  but  relied  — 
with  misplaced  confidence,  as  the  result  has  proven  —  upon 
his  friend,  Lawton,  to   do    everything   that   was   necessary  to 


MORTGAGE  DEBT  MAY  BE  ANTECEDENT,  ETC.        247 

miike  him  secure.  Be  that  as  it  may,  there  is  not  the  least  evi- 
dence to  show  that  the  instrument  was  kept  off  the  record  in- 
tentionally and  knowingly,  for  the  purpose  of  enabling  Lawton 
to  obtain  commercial  credit  on  the  strength  of  being  the  owner 
of  unincumbered  property.  To  so  presume  from  the  bare  fact 
of  non-record  would  be  to  presume  in  favor  of  fraud,  instead  of 
against  it.  Besides,  it  is  highly  improbable  that,  in  so  largo  a 
transaction,  Mr.  Grafflin  would  have  taken  so  great  a  risk.  It  is 
much  easier  to  believe  that  the  non-recording  of  the  instrument 
escaped  his'  attention.  There  is  evidence  that,  as  to  one  judg- 
ment creditor,  defendant  Lawton  did  obtain  credit  on  the  strength 
of  being  the  owner  of  the  land  in  question,  free  of  incumbrance; 
but  there  is  not  the  least  particle  of  evidence  that  Mr.  Grafflin 
had  any  knowledge  of  any  such  representation  or  conduct  on  the 
part  of  Lawton,  and  I  do  not  see  how  he  can  be  held  responsible 
for  it.  With  regard  to  the  attachment  being  issued  and  levied 
before  the  mortgage  was  recorded,  that  point  is  res  adjudicata 
in  this  State.  The  case  of  Campion  v.  Kille,  14  N.  J.  Eq.  229  ; 
15  N.  J.  Eq.  476,  with  the  cases  there  cited,  is  conclusive  in 
favor  of  complainants  on  that  point.  It  follows  that  the  com- 
plainants are  entitled  to  the  benefit  of  their  mortgage,  as  a  lien 
prior  to  any  of  the  judgments  under  the  attachment,  unless  the 
conduct  of  their  testator  in  himself  issuing  an  attachment,  and 
putting  his  claim  under  the  first  attachment,  and  obtaining  a 
judgment  thereunder,  can  be  held  as  a  waiver  of  his  lien  under 
his  mortgage. 

It  is  well  settled  by  a  long  series  of  decisions  in  New  Jersey 
that  the  obligee  of  a  bond  secured  by  a  mortgage  does  not 
waive  his  mortgage  lien  by  suing  at  law  upon  his  bond,  and 
recovering  judgment,  and  issuing  execution,  and  levying  upon 
the  mortgaged  premises.  It  is,  however,  inequitable  for  the 
mortgagee  to  proceed  to  a  sale  of  the  mortgaged  premises ;  and 
this  court  will  restrain  him  in  so  doing  at  the  instance  of  the 
owner  of  the  equity.  The  cases  in  this  State  are  collected  and 
commented  upon  by  Chancellor  Runyon  in  Lydecker  v.  Bogert, 
38  N.  J.  Eq.  136.  It  follows* plainly  that,  by  merely  issuing  a 
general  attachment  against  the  defendant  upon  the  debt  secured 
by  his  mortgage,  Mr.  Grafflin  did  nothing  to  disturb  his  lien 
under  the  mortgage.  While  it  does  not  appear  that  any  otlie: 
property  besides  the  mortgaged  premises  were  seized  under  that 
attachment,  the  contrary  does  not  appear  ;  and  it  was  perfectly 
proper  for  him  to  issue  the  attachment  he  did,  and  also  to  come 
in  as  a  creditor  under  the  previous  attachment,  with  the  view  of 
getting  the  benefit  of  any  other  property  which  might  be  found 
and  subjected  to  the  lien  of  the  process.     Besides,  the  position 


248  MORTGAGES. 

of  a  plaintiff  in  attachment  gave  him  a  standing  in  this  court  as 
the  coinphiiiiant  in  a  suit  to  set  aside  the  previous  conveyance 
and  mortgage,  under  the  rule  established  in  Hunt  v.  Field,  9  N. 
J.  Eq.  30°;  Williams  v.  Michenor,  11  N.  J.  Eq.  520.  It  follows 
that  nothing  that  the  complainant  has  done  can  be  construed  as 
cither  a  discharge  or  waiver  of  his  lien  under  the  mortgage. 
The  apparent  hardship  of  this  result  is  much  softened  by  the 
cu'cumstance  that  the  mortgagee  proceeded,  unaided  by  the 
defendants,  to  bring  suit  and  remove  out  of  the  way  the  fraudu- 
lent conveyance  made  by  Lawton,  which,  unassailed,  was  a 
complete  bar  to  any  success  on  their  part.  Complainants  are 
entitled  to  a  decree. 

On  the  argument  the  point  was  made  that  the  mortgage  can 
only  stand  as  security  for  the  amount  which  was  due  the  mort- 
gagee at  the  time  it  was  made  and  delivered,  and  which,  it  is 
insisted,  was  only  $56,689.82,  and  that  against  that  sum  should 
be  credited  all  the  payments  which  were  made  by  Lawton  on 
account  after  that  date,  which  amount  to  upward  of  $30,000.  I 
cannot  adopt  that  view.  The  mortgage  was  evidently  given  to 
secure  the  amount  due  at  its  date,  and  also  future  advances  ; 
and  it  is  perfectly  well  settled  in  New  Jersey  that  a  mortgage 
for  future  advances  is  good  for  all  the  money  advanced  under  it 
up  to  such  time  as  some  third  party  shall  have  acquired  an 
interest  by  mortgage,  conveyance,  or  judgment  in  the  mortgaged 
premises,  and  notice  thereof  be  given  to  the  holder  of  the  mort- 
gage to  secure  advances.  No  defense  of  any  such  lien  or  interest 
fn  this  case  prior  to  the  17th  of  March,  1887,  is  made,  and  the 
complainants  did  not  claim  for  any  moneys  advanced  after  that 
time.     In  fact,  none  were  advanced. 

On  examination  of  Mr.  Rogers  before  a  commissioner  in  Bal- 
timore, counsel  for  one  of  the  defendants,  in  the  course  of 
cross-examination,  interpolated  into  his  questions  what  purported 
to  be  extracts  from  the  testimony  of  Mr.  Grafflin  taken  in  some 
suit  in  Maryland  in  which  he  (Grafflin)  was  a  defendant.  Ob- 
jection was  made  to  that  mode  of  examination.  The  deposition 
itself,  if  any  such  there  be,  was  possibly  competent  evidence, 
but  it  was  not  offered.  Counsel  for  one  of  the  defendants  refer- 
red to  these  supposed  extracts  from  the  evidence  of  Mr.  Grafflin 
.18  evidence  in  this  cause,  but  they  cannot  be  so  construed. 
There  is  not  the  least  particle  of  proof  before  the  court  that  Mr. 
Grafflin  ever  swore  to  anything  of  the  kind,  and  it  would  be 
highly  improper  to  pay  any  attention  to  mere  extracts  from  a 
deposition  without  having  the  whole  before  the  court. 

One  other  matter  remains.  It  appears  that  complainants 
hold,  as  collateral  to  Lawton's    indebtedness   to  them,  certain 


MORTGAGE  FOR  THE  SUPPORT  OF  THE  MORTGAGEE.      249 

shares  of  stock  in  an  incorporated  company,  and  the  defendants 
contend  that  they  arc  not  entitled  to  a  decree  in  this  court  until 
they  shall  have  exhausted  their  remedy  by  a  sale  of  these  shares 
of  stock.  The  proof  shows  that  the  shares  of  stock  are  probably 
of  very  little  vahie;  but,  however  small  their  value  may  be,  the 
equity  by  the  defendants  was  not  seriously  resisted  by  tho  com- 
plainants' counsel  at  the  argument,  and,  as  I  recollect,  he  offered 
to  have  them  so  appropriated.  It  does  not  seem  to  me  necessary 
that  the  proceedings  in  this  cause  should  stand  until  those  shares 
are  sold.  The  result  may  be  attained  by  placing  them  within 
the  power  of  the  court;  and  upon  depositing  with  the  clerk  of 
the  court  the  certificate,  with  a  transfer  in  blank  executed  by  the 
complainants,  a  decree  will  be  made. 

There  will  be  a  reference,  if  the  defendants  desire  to  dispute 
the  amount  complainants  claim  to  be  due;  but  it  hardly  seems  to 
be  worth  while,  in  face  of  the  fact  that  the  auditor  in  attachment 
passed  U[)on  the  complainants'  claim,  and  judgment  has  been 
rendered  upon  it  in  the  attachment  suit  to  which  all  the  defend- 
ants were  parties. 


Mortgage  for  the   Support  of  the  Mortgagee. 

Cookw.  Bartholomew,  60  Conn.  24;  22  A.  444. 

Carpenter,  J.  This  is  a  suit  for  the  foreclosure  of  a  mort- 
gage, with  the  alleged  mortgage  annexed  as  an  exhibit.  The 
mortgage  is  in  two  parts,  —  an  ordinary  deed  for  the  considera- 
tion of  $900,  duly  executed  to  convey  real  estate,  and  a  con- 
dition thereto  attached,  of  the  same  date,  and  signed  by  the 
grantor,  as  follows:  *'  The  condition  of  the  within  deed  is  as  fol- 
lows: The  said  Bostwick,  for  the  consideration  named  in  the 
within  deed,  covenants  and  agrees  with  said  Charles  Cook,  as 
such  conservator,  that  he  will  receive  said  Sarah  A.  Bostwick 
into  his  care  and  keeping  during  the  term  of  her  natural  life; 
that  he  will  provide  for  all  her  wants  in  a  reasonable  and  proper 
way;  will  provide  her  with  all  needed  food,  drink,  and  clothing  ; 
have  a  room  and  fire  when  needed  ;  lodging  and  every  necessary 
comfort,  both  in  sickness  and  health  ;  and  at  her  decease  give 
her  decent  and  proper  burial,  and  erect  tombstones  at  her 
grave,  with  a  suitable  inscription  thereon,  within  one  year 
after  her  decease,  said  tombstones  to  be  of  a  value  of  not 
less  than  fourteen  dollars.  Now,  therefore,  if  said  Bostwick 
shall  well  and  truly  perform  all  and  every  of  the  above  cov- 
enants and  stipulations  faithfully,  then  this  deed  to  be  void; 
otherwise  to  remain  in  full  force  and  effect  in  law."     The  com- 


250  MOUTOAOES. 

plaint  also  alleges  that  the  clefeiidant  Bostwick  subsequently 
conveyed  his  interest  in  the  premises  to  the  defendant  Jones, 
and  that  Jones  conveyed  his  interest  to  the  other  defendant, 
Bartholomew.  The  defendants  demurred,  and  the  case  is  re- 
served. Whether  the  instrument  sued  on  is  or  is  not  a  mortgage 
is  the  principal  question  in  the  ease.  What  is  a  morlg.ige?  A 
mortgage  is  a  contract  of  sale  executed,  with  power  to  redeem. 
*  *  *  The  condition  of  a  mortgage  may  be  the  payment  of 
a  debt,  the  indemnity  of  a  surety,  or  the  doing  or  not  doing  of 
any  other  act.  The  most  common  method  is  to  insert  the  con- 
dition in  the  deed,  but  it  may  as  well  be  done  by  a  separate 
instrument  of  defeasance  executed  at  the  same  time.  *  *  * 
A  bond  or  note  is  usually  taken  for  the  debt,  which  is  described 
in  the  deed  with  a  condition  that  if  the  debt  is  paid  by  the  time 
the  deed  shall  be  void.  In  such  case  the  mortgage  is  called  a 
collateral  security  for  the  debt.  In  like  manner  an  engagement 
to  indemnify,  or  any  other  agreement,  may  be  described  in  the 
mortgage  deed."  2  Swift  Dig.  182,  183.  **To  constitute  a 
mortgage,  the  conveyance  must  be  made  to  secure  the  payment 
of  a  debt."  Bacon  v.  Brown,  19  Conn.  29.  "A  conveyance 
of  lauds  by  a  debtor  to  a  creditor  as  a  security  for  the  payment 
of  the  debt."  Jarvis  v.  Woodruff,  22  Conn.  548.  What  is  a 
debt?  "That  which  is  due  from  one  person  to  another,  whether 
money,  goods  or  services  ;  that  which  one  person  is  bound  to 
pay  to  another  or  to  perform  for  his  beuetit ;  that  of  which 
payment  is  liable  to  be  exacted;  due;  obligation;  liability." 
Webst.  Diet.  What  is  this  case?  Ammon  Bostwick  received 
$900  from  the  plaintiff,  in  consideration  of  which  he  agreed  to 
support  Sarah  A.  Bostwick  during  life,  and  at  her  death  to  bury 
her,  and  to  erect  a  tombstone  to  her  memory.  To  secure  the 
performance  of  this  agreement,  he  executed  this  deed,  with  a 
condition  that  the  deed  should  be  void  if  the  agreement  should 
be  performed.  He  assumed  a  duty  which  may  be  aptly  de- 
scribed as  a  debt.  He  executed  a  deed  of  real  estate  as  collat- 
eral security  for  the  performance  of  that  duty,  — the  payment 
of  that  debt.  The  obligation  falls  within  an  approved  defini- 
tion of  "  debt,"  and  the  conveyance  is  within  the  legal  defini- 
tion of  a  "  mortgage."  There  is  no  force  in  the  objection  that 
this  cannot  be  a  mortgage  because  of  the  difficulty  in  ascertain- 
ing the  amount  of  the  debt,  as  clearly  appears  by  the  defini- 
tions. Of  course,  there  is  less  certainty  and  more  inconvenience 
in  reducing  an  obligation  of  this  nature  to  a  money  valua- 
tion than  there  is  in  computing  the  amount  due  on  an 
ordinary  bond  or  note.  Nevertheless  it  may  be  a[)proxi- 
mately  done,  and  that  is  sufficient  for  all  the  purposes  of  sub- 


mortgagor's  possession  at  common  law.  251 

stantial  justice.  Courts  never  refuse  to  redress  an  injury  on 
account  of  the  difficulty  in  estimating  the  extent  of  the  injury  in 
dolhirs  and  cents.  In  this  case  the  age,  health,  general  condi- 
tion, and  expectation  of  life  of  Sarah  A.  Bostwick  must  be 
known.  Add  to  these  the  probable  cost  of  supporting  her  for 
one  year,  and  we  have  the  data  for  a  reasonable  estimate  of  the 
cost  of  supporting  her  through  life.  It  is  a  problem  of  the 
same  nature,  containing  the  same  elements  and  similar  factors, 
with  the  problem  which  the  parties  solved  14  years  ago.  They 
then,  as  it  seems,  fixed  the  outside  limit  at  $900.  The  same 
thing  can  be  done  now  as  well  as  then.  Possibly  $900  may  be 
considered  an  equitable  limit,  beyond  which  the  plaintiff  may  not 
claim  in  this  case.  As  other  circumstances  may  exist  which 
will  materially  affect  the  general  question,  we  will  not  consider 
the  question  further  on  this  demurrer.  Regarding  the  convey- 
ance as  a  mortgage,  as  we  do,  there  is  no  foundation  for  the 
claim  that  an  entry  for  a  breach  of  the  condition  is  essential. 
An  entry  is  essential  when  the  grantor  would  divest  the  grantee 
of  his  title  for  a  breach  of  a  condition.  This  is  an  action  by  the 
grantee,  in  whom  the  title  is,  not  to  enforce  a  forfeiture,  but  to 
foreclose  an  equity  of  redemption,  unless  the  grantor,  within  a 
reasonable  time  allowed  him  therefor,  pays  the  damage  sus- 
tained by  a  breach  of  his  agreement.  The  court  of  common 
pleas  is  advised  to  overrule  the  demurrer.  The  other  judges 
concur. 


Mortgagor's    Possession    at    Common    Law  —  Right    to  Sell 

Timber. 

Stewart  v.  Scott,  54  Ark.  187;  15  S.  W.  463. 

CocKRiLL,  C.  J.  It  is  conceded  that  the  only  questions  aris- 
ing upon  this  appeal  relate  to  Scott's  set-off  to  Stewart's  action 
against  him.  The  set-off  is  based  upon  an  agreement  for  the 
sale  of  timber,  to  be  delivered  at  the  stump  l)y  Scott,  the  vendor, 
to  Stewart.  The  purchase  price  was  to  be  the  cost  of  cutting, 
and  an  agreed  sum  per  thousand  feet.  The  contract  was  in 
writing.  After  its  execution  Stewart  concluded  that  he  could 
have  the  timber  cut  cheaper  than  Scott  could,  and  expressed  a 
determination  to  undertake  it.  Scott  acquiesced.  Stewart  cut 
and  appropriated  al)out  one-half  of  the  quantity  agreed  upon, 
and  refused  to  take  the  residue.  The  court,  against  Stewart's 
objection,  received  evidence  of  the  number  of  feet  of  timber  in 
the  trees  covered  by  the  contract,  and  which  were  rejected  by 
Stewart,  and  left  growing  upon  the  land,  and  charged  the  jury 
that  they  might  return  a  verdict  against  him  for  a  sum  equal  to 


252  MORTGAGES. 

the  contnict  price  of  the  timber  they  contained.  These  rulings 
are  assigned  as  eri'or. 

Without  laying  stress  upon  the  want  of  a  certain  description 
in  tho  written  contract  of  the  lands  upon  which  the  trees  stood, 
it  is  enough  to  say  that  it  was  an  executory  contract  to  sell  tim- 
ber, which  (in  part)  was  never  completed  by  delivery.  After 
tho  vendee  nfused  to  proceed  in  execution  of  the  contract,  tho 
vendor  did  not  make  an  offer  of  delivery  in  accordance  with 
the  terms  of  the  written  contract,  but  retained  the  trees  in 
their  natural  state.  The  measure  of  his  recovery,  therefore, 
would  not  be  the  contract  price  of  delivered  timber,  but  tho 
damages  sustained  by  reason  of  tiie  vendee's  breach  of  contract. 
But  these  damages  are  uidiquidated,  and  unliquidated  damages, 
even  when  arising  from  breach  of  contract,  are  not  the  subject 
of  set-off,  though  they  may  be  recouped  in  a  proper  case. 
Gerson  v.  Sleinmons,  30  Ark.  50;  Bloom  v.  Lehman,  27  Ark. 
489;  Clause  v.  Printing  Co.,  118  III.  612;  9  N.  E.  Rep.  201; 
Holland  v.  Rca,  48  Mich.  218;  12  N.  W.  Rep.  167;  Carter 
V.  Jaseph,  48  Mich.  615;  12  N.  W.  Rep.  876.  The  court 
erred  in  admitting  the  testimony  and  giving  the  instruction 
referred  to. 

When  the  contract  for  the  sale  of  the  timber  was  entered  into, 
Scott,  the  owner,  was  in  possession  of  the  land,  but  there  was  a 
subsisting  mortgage  upon  it  executed  by  him  to  secure  a  debt 
due  to  a  non-resident  fiim.  It  is  argued  that  the  contract  of 
sale  is  void,  and  that  no  recovery  can  be  had  for  the  timber 
actually  delivered  under  it,  because  it  was  made  in  contraven- 
tion of  the  statute  enacted  to  punish  persons  who  fell  trees  upon 
another's  land  without  his  consent.  Two  provisions  of  the  law 
are  appealed  to  to  sustain  the  contention,  viz..  Sections  1658, 
1659,  et  seq.  Mansf.  Dig.  But  it  is  not  apparent  that  the  legis- 
lature intended  that  either  provision  should  embrace  a  mort- 
gagor in  possession.  One  section  is  directed  at  "  every  person 
who  shall  commit  any  trepress  *  *  *  upon  the  lands  of 
any  other  person  "  (section  1658,  Supp.);  and  the  other  against 
those  who,  *'  without  lawful  authority,  willfully  and  knowingly 
enter  u[)on  lands  belonging  to  the  State,"  or  to  any  corpora- 
tion or  person,  other  than  the  party  accused.  Section  1659, 
1663,  Id.  The  mortgagee  is  in  common  entitled  to  the  pos- 
session of  the  mortgaged  lands,  but  until  he  takes  it  legally 
the  possession  of  the  mortgagor  is  not  illegal,  and  his  entry  is 
not  in  itself  a  trespass.  He  is  not,  therefore,  within  the  letter 
of  the  statute.  Moreover,  the  expressed  intent  of  the  leg- 
islature is  to  visit  punishment  only  upon  those  who  cut 
trees  upon  the  lands  of  another.     In  popular  acceptation,  the 


mortgagor's  possession  at  common  law.  253 

mortgagor  remains  the  owner  of  the  land  ami  the  popular  belief 
is  not  far  from  legal  accuracy.  It  is  common  to  say  that  the 
legal  title  vests  in  the  mortgagee,  but  his  interest  is  regarded  as 
a  title  only  for  the  purpose  of  enforcing  his  equities.  It  lacks 
many  of  the  essentials  of  a  title.  He  has  no  interest  that  can  be 
sold  on  execution,  and  his  widow  does  not  take  dower  in  his 
interest  in  the  land,  notwithstanding  the  statute  makes  every 
substantial  interest  in  real  estate  subject  to  sale  under  execution, 
and  the  subject  of  dower.  A  power  to  sell  is  not  necessarily  a 
power  to  mortgage,  nor  a  power  to  mortgage  a  power  to  sell ; 
and  it  is  held  that  giving  a  mortgage  upon  land  by  one  who  has 
already  conveyed  his  title  by  deed  is  not  disposing  of  the  land 
within  the  meaning  of  a  statute  which  made  it  a  felony  to  make 
a  fraudulent  second  sale.  People  v.  Cox,  45  Cal.  342.  Pay- 
ment of  the  debt  at  its  maturity  destroys  the  estate  without  a 
reconveyance  or  release  by  the  mortgagee.  Schearff  v.  Dodge, 
33  Ark.  340.  Equity  always  regards  the  mortgagor  as  the 
owner  of  the  land,  and  the  mortgagee  as  holding  a  security 
only  for  his  debt,  and  a  court  of  law,  in  a  controversy  between 
the  mortgagor  and  a  stranger  to  the  mortgage,  does  not  regard 
the  mortgage  as  a  conveyance.  For  example,  in  a  suit  by  the 
mortgagor  for  possession,  it  is  no  answer  for  the  stranger  to 
say  that  the  title  is  in  another  by  virtue  of  the  mortgage.  "  It 
is  an  affront  to  common  sense,"  said  Lord  Mansfield  in  Rex 
V.  St.  Michaels,  2  Doug.  632,  "  to  say  the  mortgagor  is  not 
the  real  owner."  If,  then,  in  popular  and  legal  acceptation, 
the  mortgagor  is  the  owner  of  the  land,  there  is  no  reason  for 
attributing  to  the  legislature  the  intent  to  punish  him  under 
the  provision  of  the  law  referred  to.  There  is  a  limit  upon 
his  right,  as  against  the  mortgagee,  to  cut  trees  growing 
upon  the  mortgaged  premises,  but  the  statute  does  not  purport 
to  punish  waste  as  distinguished  from  trespass.  A  rational 
construction  of  the  act  does  not  require  an  expansion  of  its 
terms  to  meet  that  class  of  cases.  It  is  a  statutory  crime  also 
to  sell  mortgaged  property  with  intent  to  defraud  the  mort- 
gagee. Mansf.  Dig.,  §  1693,  as  amended  by  Acts  1885,  p. 
120.  As  the  mortgage  lien  continues  to  bind  the  trees  grown 
upon  the  land  after  they  are  severed  from  the  soil,  a  sale  of 
them,  made  for  the  purpose  of  defrauding  the  mortgagee, 
would  be  in  the  face  of  the  statute.  A  contract  for  that  pur- 
pose would  therefore  be  void,  and  the  courts  would  refuse  to 
enforce  it.  O'Bryan  v.  Fitzpatrick,  48  Ark.  487  ;  3  S.  W.  Rep. 
527.  But  there  was  no  evidence  at  the  trial  which  conclusively 
stamps  the  transaction  as  a  fraud  upon  the  mortgagee.  It  was 
proved  only  that   1,560  acres  of  land  had  been  mortgaged  to 


254  MORTGAGES. 

secure  a  debt  of  $2,500.  The  vmIuc  of  llie  land,  without  the 
timber,  may  have  been  so  greatly  in  excess  of  the  mortgage  debt 
that  no  intent  to  defraud  the  mortgagee  could  be  presumed. 
The  court  was  not  asked  to  direct  the  jury  to  consider  the  ques- 
tion of  fraud,  and  there  was  no  error  in  the  refusal  to  charge  as 
requested,  on  the  theory  that  the  contiact  contravened  the  other 
sections  of  the  statute  first  cited  above.  But  for  the  errors 
indicated  it  is  ordered  that  the  judgment  be  reversed,  and  the 
cause  remanded  for  a  new  trial. 


Mortgagee's  Right  to  the  Possession. 

Townshend  v.  Thompson,  139  N.  Y.  152;  34  N.  E.  891. 

Earl,  J.  This  is  an  action  of  ejectment  to  recover  a  lot  of 
land  situate  at  the  southwest  corner  of  Eighth  avenue  and  117th 
street.  New  York  City.  The  plaintiff's  title  does  not  appear  to 
be  very  meritorious,  and  the  court  ought  not  to  be  very  astute 
to  uphold  it.  Both  parties  trace  their  title  back  to  Edwaid 
Price,  who  took  a  conveyance  of  the  lot  in  1827.  The  plaintiff 
claims  title  under  him  as  follows:  In  1835  he  conveyed  the 
lot  to  John  Scudder,  and  took  back  a  purchase  money  mortgage. 
In  1836  Scudder  conveyed  the  lot  to  Ebenezer  L.  Williams, 
subject  to  the  mortgage.  February  4,  1853,  Williams  was 
adjudged  a  bankrupt,  u[)on  his  own  petition,  under  the  bankrupt 
act  of  1841,  and  William  C.  H.  Waddell,  the  official  assignee  in 
bankruptcy,  became  his  assignee,  and  all  his  estates  at  once 
vested  in  him;  and  on  the  27th  day  of  May,  1843,  Williams 
received  his  discharge  from  his  debts.  On  Marcii  1,  1869,  the 
assignee,  by  order  of  the  court,  sold  and  conveyed  this  lot,  with 
five  other  adjoining  lots,  to  George  Law,  for  the  consideration 
of  $2,150;  and  on  the  10th  day  of  January,  1873,  Law,  for  the 
consideration  of  $500,  conveyed  the  same  lots  to  the  plaintiff. 
During  all  these  years  —  more  than  twenty-six —  before  the  sale 
to  Law,  there  is  no  pretense  that  the  assignee  had  any  actual 
possession  of  the  lots,  or  that  he  ever  exercised  any  acts  of  con- 
trol or  ownershi|)  over  them,  except  as  follows:  February 
8,  1845,  he  filed  a  report  in  which  he  stated  that  these  six 
lots,  among  other  assets,  were  subject  to  two  mortgages, 
and  were  of  uncertain- value,  and  ought  to  be  disposed  of  at 
public  sale  without  incurring  further  expense  or  delay.  It  does 
not  appear  that  any  formal  order  was  then  made  for  the  sale  of 
these  lots.  They  were  marked  *'  Worthless  "  in  an  inventory 
of  the  assets  made  by  the  assignee.  He  being  dead  at  the  time 
of  the  trial  of  this  action,  his  account  book,  found  in  the  posses- 


mortgagee's  right  to  the  possession.  255 

sion  of  the  plaintiff's  attorney,  was  put  in  evidence,  in  which 
appeared  an  entry  showing  that  he  had  sold  the  lots  on  the  23d 
day  of  March,  1846,  for  13  cents.  In  Fel)ruary,  1867,  the 
assiofnee  presented  a  further  report  to  the  court,  in  which  he 
stilted  that  an  application  had  been  made  to  him  to  procure  all 
the  iuterc'st  which  the  bankrupt  had,  and  which  became  vested 
in  him  as  assignee,  in  the  six  lots,  and  that  Price  had  foreclosed 
his  mortgage  on  the  lots  without  serving  any  notice  on  the 
assignee,  and  had  obtained  possession  of  them,  and  that  the 
application  was  to  procure  his  interest  in  the  lots  for  "  a  nominal 
consideration,  and  the  costs  of  the  assignee  and  his  counsel 
therein,  the  title  hereby  sought  being  of  no  pecuniary  value  to 
his  estate."  Upon  this  report  an  order  was  made  for  the  sale 
of  the  property  at  private  sale.  In  January,  1869,  the  assignee 
made  another  report,  in  which  he  stated  again  that  application 
had  been  made  to  him  for  the  purchase  of  the  lots  for  a 
nominal  consideration,  and  the  costs  of  the  assignee  and  his 
counsel  therein,  the  title  sought  being  of  no  pecuniary  value  to 
the  estate.  Upon  this  report  an  order  was  made,  authorizing 
the  sale  of  the  lots  at  public  auction,  and,  as  above  stated, 
they  were  sold  and  conveyed  to  Law.  It  is  clearly  inferable 
that  John  Townshend,  the  plaintiff's  husband,  and  her  attorney 
in  this  action,  instigated  these  proceedings  of  the  assignee 
in  the  years  1867  and  1869,  and  that  he  was  his  friendly 
counsel  therein.  The  fact  that  the  lots  were  not  sold  for  a 
nominal  consideration  must  have  been  a  disappointment  to  some 
one.  It  is  not  probable  that  the  man  who  paid  $2,150  for  the 
lots  was  the  person  who  was  seeking  to  procure  them  for  a 
nominal  consideration.  But  Law,  as  an  obstacle,  was  soon  dis- 
posed of.  On  the  5th  day  of  February,  1870,  John  Townshend, 
without  an  atom  of  record  title,  and,  so  far  as  this  record  dis- 
closes, without  any  title  whatever,  conveyed  the  lots  to  his 
daughter,  for  a  consideration  of  one  dollar,  by  a  deed  containing 
full  covenants,  in  which  was  the  statement  that  the  lots  were 
then  in  the  occupation  of  his  tenant,  John  H,  Bischoff.  Law's 
title  being  thus  menaced,  he  conveyed  the  lots  to  the  plaintiff  at 
a  loss  of  $1,650,  besides  interest.  But  the  final  scene  in  this 
interesting  drama  is  still  to  come.  Of  the  purchase  money 
paid  by  Law,  $2,000  was  paid  to  the  clerk  of  the  court. 
Steps  were  immediately  taken  by  Townshend,  as  attorney 
for  Wesley  S.  Yard,  receiver  of  the  Trust  Fire  Insur- 
ance Company,  to  reach  this  money.  The  insurance  com- 
pany had  obtained  against  Williams  a  deficiency  judgment 
in  a  foreclosure  sale  for  upwards  of  $2,000  in  October, 
1842,  and  that   judgment    was    specified   as   a    liability  of   the 


256  MORTGAGES. 

bankrupt  in  the  schodulos  aiuioxcd  to  hid  petition  to  be  declared 
a  bankrupt  in  1843,  Although  uboui  27  yeurs  had  elapsed  since 
he  was  declared  a  bankrupt,  this  debt  had  not  been  proved,  and 
in  fact  no  debt  had  been  i)roved.  Now,  Townshend,  appearing 
as  attorney  for  receiver,  caused  the  debt  to  bo  proved ;  and 
such  proceedings  were  taken  by  hira  (no  other  debt  having 
been  proved)  that  the  whole  $2,000,  less  costs,  —  about  $75, — 
was  paid  to  the  receiver  in  Se[)teniber,  1870,  The  result  of  all 
these  proceedings  in  bankruptcy  was  that  Mrs.  Townshend  had 
a  conveyance  of  these  lots,  and  some  one  had  the  proceeds  of 
the  sale  by  the  assignee;  and  the  only  loser  seems  to  have 
been  Law,  who  unwittingly  bid  olF  the  lots  at  the  assignee's 
auction  sale.  The  plaintiff  did  not  seem  to  be  in  haste  to  take 
possession  of  these  lots,  and  indeed  it  does  not  appear  that  she 
ever  took  possession  of  them.  In  1875  Mr.  Townshend  first 
appeared  at  the  lots,  and,  as  he  testified,  finding  them  unoccu- 
pied he  then  caused  a  fence  to  be  put  around  them,  which  re- 
mained there  a  few  months,  and  then  disapjieared.  Before  the 
fence  was  built,  according  to  the  testimony  of  one  of  the  plain- 
tiff's witnesses,  the  lots  were  occupied  by  a  gardener,  and  the 
fence  was  built  to  keep  him  out.  It  does  not  appear  whether  in 
building  the  fence,  Mr.  Townshend  acted  for  himself,  or  for  his 
daughter,  or  for  his  wife.  He  testified  that  in  1878  ho  received 
a  notice  from  the  commissioner  of  public  works  to  repair  the 
curb  and  gutter  stones  in  front  of  the  lots,  and  that  in  compli- 
ance with  the  notice  he  made  the  repairs,  as  the  agent  of  his 
wife.  Frederick  S.  Wieck,  one  of  the  plaintiff's  witnesses, 
testified  that  he  took  from  Mr.  Townshend  a  lease  of  the  lots 
in  1883,  and  occupied  them  for  about  four  years,  and  that  he 
was  in  possession  of  the  lots  now  in  question  before  he  took 
the  lease.  It  does  not  appear  that,  in  making  this  lease,  Mr. 
Townsend  acted  for  the  plaintiff.  These  are  all  the  acts  of 
ownership  exercised  over  these  lots  by  Mr.  and  Mrs.  Towns- 
hend at  any  time,  and  neither  of  them  ever  paid  any  taxes  upon 
the  lot,  or  assumed  any  of  the  burdens  of  ownership,  except 
the  slight  repairs  to  the  gutters  in  front  of  the  lots.  These  are 
the  facts  and  incidents  attending  the  plaintiff's  title  to  this  lot. 
The  chain  of  title  is  apparently  complete,  and  we  may  assume 
that  it  must  prevail,  unless  it  has  been  subverted  by  the  facts  yet 
to  be  stated. 

As  before  stated.  Price  took  back  a  purchase-money  mortgage 
from  Scudder,  and  that  mortgage  he  foreclosed  in  chancery. 
The  bill  was  filed  November  21,  1845,  and  the  decree  of  fore- 
closure was  entered  June  11,  1846.  Price  bid  off  the  property, 
and  the  master's  deed  to  him  was  executed  September  8,  1846; 


mortgagee's  right  to  thk  possession.  257 

and  then  he  went  into  possession  of  the  property,  and  remained 
in  possession  until  January  26,  1855,  when  he  died  intestate, 
leaving  several  children,  his  only  heirs  at  law.  Scudder 
and  various  junior  incumbrancers  were  made  defenchuits 
in  the  foreclosure  suit.  But  Waddell  was  not  mside  a 
party,  and  hence,  as  to  him,  the  foreclosure  was  ineffectual, 
and  his  title  remained  unaffected  thereby.  In  February, 
1858,  an  action  was  commenced  by  one  of  Price's  heirs 
against  the  others  for  a  partition  of  the  real  estate  left  by 
him,  including  the  six  lots,  and  judgment  of  partition  was 
entered,  and  the  proi)erty  was  sold  ;  but  no  conveyance  of  this 
lot  was  made,  probably  on  account  of  the  defective  foreclosure 
of  the  mortgage.  Thereafter,  in  December,  1858,  for  the  pur- 
pose of  perfecting  the  record  title  by  foreclosing  the  rights  of 
Waddell  as  assignee,  an  action  was  commenced  by  Price's  admin- 
istrator to  foreclose  the  mortgage  against  him.  He  was  named 
in  the  action  individually,  and  not  as  assignee.  He  appeared  in 
the  action,  and  on  the  consent  of  his  attorney  a  judgment  of 
foreclosure  was  entered  ;  and  in  pursuance  of  that  judgment  the 
property  was  again  sold,  and  conveyed  to  Mrs.  Coulter,  one  of 
the  heirs,  January  28,  1859.  This  foreclosure  wasstill  ineffectual 
to  cut  off  the  rights  of  the  assignee,  because  he  was  not  made  a 
party  in  his  representative  capacity.  The  foreclosure  was,  how- 
ever, believed  to  be  effectual  until,  in  1889,  we  held  in  the  case 
of  Landon  v.  Townsheud,  reported  in  112  N.  Y.  93;  19  N.  E. 
Rep.  424,  that  it  was  ineffectual,  on  the  ground  stated.  The  other 
heirs  of  Price  conveyed  their  interests  in  the  lots  to  Mrs.  Coulter 
at  various  times  between  the  last  foreclosure  sale  and  March 
25,  1863.  The  subsequent  conveyances  of  the  lot  were  as  fol- 
lows: Mrs.  Coulter  to  Donovan,  April  10,  1863;  Donovan  to 
Adams,  May  8,  1863;  Adams  to  Whitbeck,  March  25,  1864; 
Whitbeck  to  Andrew,  April  1,  1867;  and  Andrew  to  William 
Thompson,  March  9,  1868.  Thompson  died  January  13,  1872, 
leaving  all  his  right  and  title  to  the  lot  to  these  defendants,  his 
widow  and  children.  It  thus  appears  that  the  defendant's  chain 
of  title  is  complete,  but  for  the  defective  foreclosure  of  the 
Scudder  mortgage ;  and  we  will  assume,  without  passing  upon 
other  grounds  of  defense  presented  for  our  consideration,  that 
the  defendants  must  rely  for  their  defense  upon  that  mortgage, 
aad  the  possession  of  the  lot  by  them  and  their  predecessors. 

A  purchaser  at  a  mortgage  foreclosure  sale,  defective  and 
void,  as  against  the  owner  of  the  equity  of  redemption,  because 
he  was  not  made  a  party  to  the  foreclosure  action,  becomes 
assignee  of  the  mortgage,  and,  if  he  lawfully  enters  into  posses- 
sion of   the  real    estate  purchased,  he  becomes  a  mortgagee  in 

17 


258  MORTGAGES. 

possession.  Robinson  v.  Ryan,  25  N.  Y.  320;  Wlnslow  v. 
Clark,  47  N.  Y.  2(n  ;  Miner  v.  Boekman,  50  N.  Y.  337;  Thorn. 
Mortg.  (2(1  Ed.)  c.  8.  Therefore,  when  Price  purchased  at  the 
defective  foreclosure  sale,  in  1846,  he  became  assignee  of  the 
mortgiige,  and  when  his  administrator  again  foreclosed  the 
mortgage,  in  1859,  and  Mrs.  Coulter  became  the  purchaser,  she 
bocamo  the  assignee  of  the  mortgage;  and  the  mortgnge  passed 
tc  the  subsequent  grantees  of  the  real  estate,  and  to  these 
defendants  upon  the  death  of  the  last  grantee.  It  is  undisputed 
that  Price,  under  his  purchase  at  the  foreclosure  sale,  entered 
into  possession  of  this  lot,  and  continued  to  possess  it  until  his 
death  in  1855.  His  entry  was  lawful,  under  color  of  right,  and 
was  acquiesced  in  by  Waddell,  the  assignee.  After  his  death  his 
children,  inchiding  Mrs.  Coulter,  were  in  the  possession  of  the 
lot,  through  their  tenants,  and  that  possession,  with  some  inter- 
ruptions, has  been  continued  by  these  defendants  and  their  pre- 
decessors to  this  day.  This  lot  was  generally  uninclosed,  and 
was  used  as  a  garden  by  market  gardeners.  In  the  winter  it 
was  necessarily  unoccupied,  and  in  the  summers  it  was  cultivated 
and  possessed  that  way.  Price,  having  taken  lawful  possession, 
never  surrendered  his  possession.  His  children  took  possession 
from  him,  and  neither  they  nor  any  of  their  successors  in  the  title 
voluntarily  surrendered  the  possession,  or  even  intended  to  aban- 
don the  possession.  They  always  paid  the  taxes  upon  the  lot, 
and  always  claimed  title  to  the  same.  Their  position  as  mort- 
gagees 'n  possession,  having  been  once  acquired,  continued, 
unless  they  in  some  way  surrendered  or  abandoned  it.  It  was 
not  destroyed  by  the  unlawful  interference  of  Townsend,  or  any 
other  person.  It  does  not  appear  that  they  ever  acquiesced  in,  or 
ever  knew  of,  his  pretended  possession  or  interference  with  the 
lot.  A  mortgagee  who  has  lawfully  taken  ^possession  of  the 
mortgaged  premises  cannot  be  ousted  or  deprived  of  his  rights 
as  such  by  the  mere  instruction  of  the  owner  of  the  equity  of 
redemption  against  his  will,  or  without  his  knowledge.  There 
must  be  some  act  of  omission  on  his  part  indicating  a  change  in 
his  position.  The  mortgagee  who  has  taken  lawful  possession 
of  the  land  pledged  for  his  debt  is  not  obliged  to  stand  upon 
the  land  with  a  club,  to  keep  off  intruders,  nor  need  his  con- 
tinued possession  be  of  such  a  character  as  is  required  by  the 
statute  to  create  a  title  by  adverse  possession.  If  the  land  be 
uninclosed,  he  is  not  bound  to  inclose  it  or  to  cultivate  it.  Hav- 
ing taken  possession  lawfully,  with  the  assent  of  the  mortgagor 
or  his  successor,  his  relation  to  the  land  is  not  changed  until,  by 
some  act  or  omission  of  his,  he  intentionally  changes  it.  He 
may  abandon  or  surrender  the  possession,  or,  what  is  the  same 


PURCHASE    OF   OUTSTANDING    TITLE.  259 

thing,  he  may  acquiesce  in  the  possession  of  the  mortgagor  or 
his  successors,  thereby  indicating  his  surrender  of  the  pledge. 
Here  there  is  not  an  atom  of  evidence  tending  to  show  that  any 
of  the  parties  holding  under  the  mortgage  ever  intended  to  sur- 
render the  land,  or  that  they  knevv  of  any  possession  by  the 
plaintiff  or  her  pretended  agent,  or  by  any  act  under  a  lease 
from  hiia  to  her. 

So,  too,  a  mortgagee  once  lawfully  in  possession  of  the  land, 
who  has  been  wrongfully  deprived  of  the  possession  by  the 
mortgagor  or  any  other  intruder,  may  resume  his  possession,  if 
he  can,  and  again  hold  the  pledge  in  possession.  Never  having 
voluntarily  surrendered  or  abandoned  the  possession,  he  has  not 
lost  his  right  to  the  possession,  and  he  may  again  peaceal)ly  en- 
ter into  possession,  and  thus  be  restored  to  his  rightful  position 
as  mortgagee  in  possession.  Here  it  is  undisputed  that  these 
defendants  were  in  possession  of  the  lot  at  the  time  of  the  com- 
mencement of  this  action,  and  for  some  years  prior  thereto. 
Our  conclusion,  therefore,  is  that  they  are  at  least  entitled  to  the 
position  of  mortgagees  in  possession,  and  that  hence  this  action 
cannot  be  maintained  against  them.  As  this  conclusion  is  suffi- 
cient for  the  affirmance  of  this  judgment,  we  do  not  deem  it  im- 
portant to  inquire  whether  the  defendants  have  any  other 
grounds  of  defense  to  the  action.  The  judgment  should  be 
affirmed  with  costs.     All  concur. 


Tenure    Between  Mortgagor  and  3Iortgagee,  in    Respect   to 
Purchase  of  Outstanding  Title. 

Turner  v.  Littlefleld,  142  111.  630;  32  N.  E.  522. 

Craig,  J.  This  was  a  bill  in  equity,  brought  by  Otis  A.  Tur- 
ner ngainst  Eaton  Littlefield  and  others,  in  which  the  complain- 
ant seeks  to  have  a  certain  deed  made  by  the  sheriff  of  Adams 
County  to  Littlefield  and  William  H.  Collins,  executed  Decem- 
ber 2,  1879,  purporting  to  convey  certain  lands,  and  a  certain 
agreement  executed  by  the  Rutherfords  and  Littlefield  and 
Collins,  declared  a  mortgage,  with  right  of  redemption,  as 
a  judgment  creditor,  and  the  right  to  a  sale  of  the  lands  in 
satisfaction  of  his  judgment  after  the  payment  of  the  amount 
of  advances  made  by  Littlefield  under  the  deed  and  agreement. 
The  record  in  this  case  is  somewhat  voluminous,  but  as  to 
the  main  facts  upon  which  the  decision  of  the  case  rests, 
there  is  no  substantial  controversy.  On  the  13th  day  of 
April,  1878,  William  Marsh  obtained  a  judgment  in  the  circuit 
court    of    Adams    County    against    Reuben    C.    and    Rebecca 


260  MORTGAGES. 

M.  Rutherford  for  $5,750,  upon  which  an  execution  issued 
April  .'^0,  1878,  directed  to  the  sheriff  of  Adsiins  County.  The 
sheriff  of  Adams  County  levied  on  the  following  hinds  in  said 
county,  the  property  of  Rol)ecca  M.  Rutherford,  viz.:  S.  W.  N. 
E.  ;^r,  S.  ^  N.  W.  31,  5<>  acres  off  north  end  E.  i  S.  W.  31,  the 
E.  ^  8.  W.  34,  and  S.  W.  N.  E.  34,  all  in  township  1  S.,  ranjre 
8  VV.;  and  also  S.  ^  N.  W.  G,  2  S.,  8  W.,  except  a  part  of  the 
last-named  tract  set  off  for  homestead.  And  on  June  1,  1878,  at 
a  .sale  on  said  execution,  all  of  said  real  estate  was  sold  to  Will- 
iam Marsh;  the  part  set  off  for  homestead  alone  excepted.  On 
May  30,  1879,  Robert  McComb  ol)tained  a  judgment  in  the 
Adams  County  circuit  court  against  the  Rutherfords  for  $715.04 
Execution  issued  on  this  judgment  August  22,  1879.  McComb 
redeemed  said  premises  from  the  sale  under  the  Marsh  judg- 
ment by  paying  to  the  sheriff  the  proper  amount  of  redemption 
money,  and  the  McComb  execution  was  levied  on  the  premises, 
the  part  set  off  for  homestead  excepted,  and  on  September  18, 
1879,  a  sale  under  the  levy  on  the  McComb  execution  was 
made  at  the  court  house  by  the  sheriff  of  Adams  county.  The 
lands  in  section  31,  aforesaid,  were  sold,  and  a  certificate  of 
purchase  therefor  was  given  to  Eaton  Littletield  and  William 
H.  Collins.  The  balance  of  the  lands  was  sold  to  other  par- 
ties. On  December  2,  1879,  the  time  of  redemption  having 
expired,  and  no  further  redemi)tion  having  been  made,  the 
sheriff  executed  a  deed  to  Littletield  and  Collins  for  the  lands 
they  bid  off  in  section  31.  It  also  appears  that  an  agreement 
was  executed  by  Littlefield  and  Collins,  and  the  two  Ruther- 
fords, bearing  date  September  18,  1879,  which  recites  that 
Marsh  had  obtained  a  judgment  heretofore  mentioned,  and 
that  a  sale  of  the  lands  in  execution  issued  thereon.  The  agree- 
ment then  recites  that  Robert  McComb  had  also  obtained  a 
judgment  as  heretofore  stated.  The  agreement  then  proceeds 
as  follows:  "And  whereas,  the  said  Robert  McComb,  as  a 
judgment  creditor,  has  redeemed  the  above  and  foregoing 
described  property  (excepting  the  property  lying  in  section 
thirty-four  [34]  as  above  described)  by  paying  the  said  Marsh 
the  full  amount  of  his  claim  thereon;  and  whereas,  Eaton 
Littletield  and  William  H.  Collins  furnished  the  money  for 
the  payment  of  a  portion  of  the  said  Marsh's  claim,  namely, 
about  four  thousand  dollars  ($4,000),  to  said  McComb:  There- 
fore it  is  understood  and  agreed  that  the  said  Littletield 
and  Collins  are  to  take  a  sheriff's  deed  of  the  following 
described  property  (when  sold  to  satisfy  the  aforesaid 
judgment  of  the  said  Robert  McComb),  to  wit,  the  south- 
west  quarter  of   the    northeast   quarter   of   section    thirty-one 


PURCHASE    OF    OUTSTANDING    TITLE.  261 

(31),  ill  township  one  (1)  south  of  the  base  line,  and  range 
eight  (8)  west  of  the  fourth  principal  meridian ;  also  the  south 
half  of  the  northwest  quarter  of  said  section  thirty -one 
(31 );  also  fifty-six  (56)  acres  off  the  north  end  of  the  cast  half 
of  the  southwest  quarter  of  said  section  thirty-one  (31),  sub- 
ject to  prior  incumbrances,  —  such  deed  to  be  treated  as  amort- 
gage,  and  said  property  to  be  held  iu  trust  for  the  benefit  of  said 
Reul)en  C.  and  Rebecca  M.  Rutherfoid  and  their  heirs  or  legal 
representatives,  and  as  a  security  to  the  saiti  Eaton  Littlefield 
and  William  H.  Collins  for  the  repayment  to  them  of  the  said 
sum  of  four  thousand  dollars  ($4,000),  with  the  interest  thereon 
annually.  And  it  is  further  understood  and  agreed  that  if,  at 
any  time  within  five  years  from  the  date  of  the  said  sheriff's 
deed  to  the  said  Eaton  Littlefield  and  William  H.  Collins,  the 
said  Reuben  C.  and  Rebecca  M.  Rutherford,  or  either  of  them, 
or  their  heirs,  executors,  administrators,  or  assigns,  shall  repay 
the  said  sum  of  four  thousand  dollars  ($4,000),  with  interest 
thereon  at  the  rate  of  eight  per  cent  per  annum  from  the  22d 
day  of  August,  A.  D.  1879,  together  with  all  money  advanced  or 
loaned  to  said  Rebecca  M.  and  Reuben  C.  Rutherford  by  said 
Eaton  Littlefield  and  William  H.  Collins,  or  either  of  them  ;  also 
all  money  advanced  or  paid  by  said  Littlefield  and  Collins,  or 
either  of  them  on  the  principal  or  interest  that  has  already  accrued 
or  may  accrue  on  any  prior  liens  or  incumbrances  on  said  land»,or 
for  taxes,  or  for  any  necessary  repairs,  or  for  maintaining  or 
keeping  in  repair  the  fences  on  said  land,  with  interest  at  the 
rate  of  eight  per  cent  per  annum,  —  to  the  said  Eaton  Littlefield 
and  William  H.  Collins,  or  their  legal  representatives,  then  the 
said  Littlefield  and  Collins  shall,  and  they  do  hereby  agree  for 
themselves,  their  heirs,  and  executors,  administrators,  or  assigns, 
to  reconvey  the  last-above  described  real  estate,  situate  in  sec- 
tion thirty-one  (31),  tovvnshi[)  one  (1),  to  the  said  Reuben  C. 
and  Rebecca  M.  Rutherford,  or  either  of  them,  or  their  legal 
representatives.  And  it  is  further  understood  and  agreed  be- 
tween the  said  Eaton  Littlefield  and  William  H.  Collins  and  the 
said  Reuben  C.  and  Rebecca  M.  Rutherford,  and  all  parties  con- 
cerned, that,  in  case  the  said  Reuben  C.  and  Rebecca  M.  Ruth- 
erford, or  either  of  them,  or  their  legal  representatives,  credit- 
ors, or  assigns,  shall  fail  to  repay  the  said  sum  of  four  thousand 
dollars  ($4,000),  with  interest  thereon,  and  other  sums  or  mon- 
eys as  above  mentioned,  to  the  said  Eaton  Littlefield,  William 
H.  Collins,  or  their  legal  representatives,  within  the  term  of  five 
years,  as  above  specified,  then  the  said  sheriff  deed  to  the  said 
Eaton  Littlefield  and  William  H.  Collins  is  to  be  considered  and 
held  by  them  as  a  deed  absolute  for  them  and  their  heirs  forever. 


262  MORTGAGES. 

In  witness  whereof  we  have  hereunto  set  our  hands  and  seals 
this  18th  day  of  September,  A.  D.  1879,  at  Quincy,  Illinois." 
It  also  appears  that  at  the  time  of  the  recovery  of  the  March 
judgment  and  of  the  execution  of  the  agreement  dated  Septem- 
ber 18,  1879,  said  land  in  section  31  was  8iil)ject  to  the  lien 
of  a  deed  of  trust  dated  August  1,  1877,  to  George  Castle, 
trustee,  which  was  duly  recorded  in  the  recorder's  office  of 
Adams  County,  111.  ;  that  on  the  14th  day  of  September, 
1882,  William  H.  Collins  and  wife,  by  their  quitclaim  deed 
of  that  date,  conveyed  all  their  right,  title,  and  interest  in  said 
land  to  said  Littletield  ;    that   on  the  23d  day  of   September, 

1882,  George  Castle,  as  trustee,  after  duly  advertising  said 
trustee's  sale,  in  pursuance  of  the  power  in  sairl  trust  deed 
contained,  sold  said  land  to  said  Littlefield  for  the  sura  of 
$11,850,  as  bid  by  him  at  said  trustee's  sale,  and  made  and 
delivered  to  said  Littletield  his  trustee's  deed  of  that  date, 
made  and  executed  in  pursuance  of  the  power  in  said  deed 
of  trust  contained;  and  that  said  trustee's  deed  was  duly  re- 
corded in  the  recorder's  office  of  Adams  County  on  the  28lh  day 
of   September,    1882.     It    also  appears  that  on  December   14, 

1883,  Alfred  Gatchell  recovered  a  judgment  against  the  Ruther- 
fords  for  $3,144.  Execution  was  issued  on  the  judgment 
duiing  the  year  next  following  its  rendition.  On  the  18th 
day  of  August,  1889,  the  judgment  was  assigned  to  Otis  A. 
Turner,  the  complainant  ;  and  on  the  19th  day  of  August  fol- 
lowing, an  execution  was  issued,  and  levied  on  the  lands  in 
section  31  heretofore  descril)ed.  On  the  same  day  the  com- 
plainant filed  this  bill  in  aid  of  the  execution.  It  also  appears 
that  on  the  30th  day  of  October,  1884,  Reuben  C.  and  Rebecca 
M.  Rutherford,  by  quitclaim  deed  of  that  date,  conveyed  said 
premises  to  Littletield. 

It  is  insisted  by  complainant  that  the  sheriff's  deed  to  Little^ 
field  and  Collins,  dated  December  2,  1879,  and  the  agreement 
dated  September  18,  1879,  which  showed  the  terms  and  condi- 
tions upon  which  the  lands  were  redeemed  under  the  McComb 
judgment,  constituted  a  mortgage  ;  while,  on  the  other  hand,  it 
is  claimed  that  the  deed  is  an  absolute  conveyance,  and  the 
agreement  was  a  mere  contract  providing  for  a  reconveyance  to 
the  Rutherfords  if  within  five  years  they  should  repay  the,  $4,000 
and  interest,  and  the  other  sums  mentioned  in  the  agreement, 
which  they  failed  to  do.  Much  of  the  argument  is  devoted  to  a 
discussion  of  the  question  whether  the  Marsh  deed  was  a 
mortgage  or  an  agreement  for  a  resale,  and  many  authorities 
have  been  cited  by  counsel  which  are  claimed  to  sustain  their 
respective  positions  on  this  branch  of  the  case.     We  shall  not, 


PURCHASE    OF    OUTSTANDING    TITLE.  263 

however,  stop  to  review  the  authorities  or  determine  that  ques- 
tion, as,  in  our  judgment,  the  decision  of  the  case  does  not 
hinge  upon  that  question.  As  has  been  seen,  at  the  time  Little- 
field  and  Collins  purchased  the  property  at  sheriff's  sale,  the 
lands  were  mcumbered  by  a  deed  of  trust  executed  and  recorded 
in  1877.  Under  this  prior  lien  the  property  was  sold,  and  pur- 
chased by  Littlefield  on  the  23d  day  of  September,  1882,  long 
before  the  complainant's  judgment  was  rendered.  As  the  deed 
of  trust  under  which  this  sale  was  made  was  the  first  lien  on  the 
property,  it  is  plain,  if  the  sale  was  made  in  conformity  to  the 
terms  and  conditions  of  the  deed  of  trust  and  Littlefield  had  the 
right  to  purchase  the  property  at  the  sale,  then  he  acquired  the 
title  regardle^ss  of  the  prior  sale  by  the  sheriff,  and  the  contract 
executed  in  pursuance  of  such  sale,  under  which  the  Ruther- 
fords  had  the  right  to  redeem  or  repurchase  within  a  specified 
time.  It  is  a  fact  beyond  dispute  thiit  the  sale  was  made  in  con- 
formity to  the  terms  of  the  deed  of  trust.  No  unfairness  is 
charged  or  claimed  from  any  quarter.  The  debt  secured  by  the 
deed  of  trust  was  a  valid  obligation,  and  the  deed  of  trust 
executed  to  secure  it  was  the  first  lien  on  the  property.  But 
while  it  is  conceded  that  the  sale  was  in  all  respects,  regular  and 
in  conformity  to  the  terms  of  the  deed  of  trust,  and  that  Little- 
field purchased  at  the  sale  and  obtained  a  deed,  yet  it  is  insisted 
that  Littlefield  occupied  such  relations  to  the  Rutherfords  in 
regard  to  the  property  that  he  was  precluded  from  becoming  the 
purchaser  at  the  trustee's  sale.  After  Littlefield  and  Collins 
purchased  at  the  sheriff's  sale,  they  paid  all  taxes  on  the 
property  from  year  to  year,  until  Collins  sold  out  to  Littlefield, 
and  from  that  time  until  the  present  he  has  paid  all  taxes. 
After  the  sheriff's  sale,  the  possession  of  the  property  passed 
into  the  hands  of  Littlefield,  and  he  testified  that  at  the  sheriff's 
sale  he  notified  Rutherford  that  he  had  no  right  to  any  further 
rents  ;  "  that  the  land  was  ours."  "  He  acknowledged  it,  and 
said  he  could  not  live  unless  we  allowed  him  to  have  the 
rents."  Littlefield  and  Collins  finally  consented  that  Ruther- 
ford might  have  the  rents  for  a  time,  and  he  received  the  rents 
foi  the  years  1880,  1881,  and  1882.  Li  1879,  Littlefield  paid 
the  intere.Nt  on  the  Castle  trust  deed,  and  continued  to  pay  it  until 
the  sale  in  1882.  In  1882  Littlefield  became  dissatisfied  with  the 
situation  of  the  property,  and  called  upon  Rutherford  to  deter- 
mine whether  he  could  repay  the  advances  which  had  been  made, 
and  take  the  property,  or  abandon  it;  and  he  testified  (and  in 
this  he  is  not  contradicted)  that  Rutherford  acknowledged  his 
inability  to  take  the  property,  and  he  then  abandoned  and  gave 
up.     This  was  a  short  time  before  the  sale  under  the  deed  of 


264  MORTGAGES. 

trust.  His  testimony,  as  shown  in  the  abstract,  on  this  point 
was  as  follows:  "  As  I  said,  I  did  not  know  whether  I  was  out 
of  the  house  or  not.  I  met  Dr.  Rutherford,  and  told  the  doctor 
in  June,  1882,  that  we  had  waited  nearly  three  years,  and  I 
wanted  to  know  whether  ho  was  going  to  buy  the  i)roperty  ;  that 
we  Inul  paid  out  al!  the  money.  Redeeming  was  never  n)entioned 
between  us  at  any  time.  I  never  hud  any  conversation  until 
about  that  time  about  his  buying.  I  stated  that  the  property, 
instead  of  increasing  was  decreasing  in  value.  I  stated  the 
amount  that  it  had  cost,  and  what  it  cost  to  pay  the  Castle  trust 
deed;  and  I  wanted  to  know  whether  he  could  raise  the  money 
and  buy  the  property,  or  whether  he  intended  to  do  it.  I  also 
stated  the  amount  due,  when  we  had  the  conversation,  that  he  was 
owing.  The  amount  that  it  would  take  to  pm'chase  the  property 
in  section  31,  and  pay  his  debts,  was  over  $40,000.  He  stated  that 
he  could  not  pay  them  ;  that  he  must  give  up  all  hope  and  did  give 
up  all  h'>pe;  that  he  must  turn  his  attention  to  try  and  save  his 
home  place  —  to  save  a  portion  of  it.  That  was  the  conversation 
at  the  time." 

It  is  true  that  the  Rutherfords  had  the  right,  if  they  saw  proper 
to  insist  U[)on  it,  under  the  contract  of  September  18,  1879,  to  re- 
purchase at  anytime  within  five  years  from  the  date  of  the  contract 
by  repaying  all  advances;  but,  if  they  discovered  their  inability 
to  perform  the  contract  at  any  time  before  the  expiration  of  five 
years,  no  reason  is  perceived  why  they  might  not  abandon  the 
contract  and  surrender  all  rights  under  it.  And  if  this  was 
done,  then,  after  such  al)andonment,  it  seems  clear  Littlefield 
would  have  the  same  right  to  purchase  under  the  trustee's  sale 
that  a  btranger  to  the  transaction  would  have.  If  Littlefield  had 
purchased  at  the  trustee's  sale  without  first  calling  upon  the 
Rutherfords  to  determine  whether  they  intended  to  repay  the 
moneys  he  had  advanced,  and  rely  upon  the  contract  under  which 
he  procured  title  at  the  sheriff's  sale,  that  might  l)e  ground  for 
holding  that  he  was  in  a  position  to  purchase  and  acquire  an 
outstanding  title  which  he  could  set  up  as  against  them.  But 
this  he  did  not  do.  He  had  never  assumed  the  Castle  deed  of 
trust,  and  was  under  no  obligation  to  pay  it;  but  for  the  purpose 
of  protecting  the  title  he  had  acquired  at  the  sheriff's  sale  he 
voluntarily  paid  the  interest  on  the  deed  of  trust  from  1879  to 
1882,  paying  out  in  interest  over  $2,000.  As  the  property  was 
not  advancing  in  value,  he  then  became  apprehensive  that  the 
property  was  not  of  sufficient  value  to  repay  his  advances,  and  at 
the  same  time  pay  the  deed  of  trust,  which,  of  course,  had  to  be 
paid,  or  all  the  advances  made  by  him  would  be  lost.  In  this 
condition  of  things,  he  called  on  the  Rutherfords,  and  requested 


PURCHASE    OF   OUTSTANDING    TITLE.  265 

them  to  determine  what  course  they  would  pursue,  —  whether 
they  would  raise  the  money  to  pay  the  advances  on  the  property 
or  abandon  it.  They,  not  being  able  to  raise  the  money  neces- 
sary to  pay  the  advances,  elected  to  abandon  the  property,  and 
so  notified  Littletield.  Under  such  circumstances,  he  had  the 
undoubted  right,  for  the  puipose  of  protecting  himself,  to  pur- 
chase at  the  trustee's  sale.  After  the  Kutherfords  notified  him 
that  they  were  unable  to  perform  the  contract,  and  abandoned 
whatever  claim  or  right  they  had  under  it,  there  was  no  longer 
any  equitable  relation  existing  between  him  and  them  which 
would  forbid  him  from  purchasing  the  property  at  the  trustee's 
sale,  and  relying  upon  such  title,  not  only  as  against  them,  but 
their  creditors.  The  fact  that  the  Rutherfords  had  abandoned 
all  claims  to  the  property  under  the  contract  before  the  sale 
under  the  deed  of  trust  does  not  rest  entirely  in  the  evidence 
heretofore  alluded  to.  After  the  sale  in  1882,  Littlefield  as- 
sumed the  entire  control  of  the  property.  No  rents  were  paid 
to  the  Rutherfords  after  that  year,  nor  did  they  exercise,  or 
assume  to  exercise,  any  control  or  management  of  the  property; 
and  in  October,  1884,  they  executed  and  delivered  to  Littlefield 
a  quit-claim  deed  of  the  property.  It  is  not  claimed  or  pre- 
tended that  any  title  passed  by  this  last-mentioned  deed,  but 
the  execution  and  delivery  of  the  deed  is  a  fact  proper  for  con- 
sideration in  corroboration  of  the  testimony  of  the  defendant 
that  the  Rutherfords  had  abandoned  all  claim  to  the  property 
before  the  sale  under  the  trust  deed.  In  the  argument  much 
stress  is  placed  on  the  fact  that  Littlefield  requested  the  trustee 
to  make  the  sale  under  the  deed  of  trust.  We  do  not  think  this 
fact  affects  the  validity  of  the  sale.  For  four  years  Littlefield 
had  paid  the  interest  on  the  deed  of  trust,  and  all  taxes  on 
the  land.  The  original  sum  advanced  by  him  at  the  sheriff's 
sale  remained  unpaid,  and,  owing  to  the  embarrassed  financial 
condition  of  the  Rutherfords,  there  was  no  prospect  of  recover- 
ing anything  from  them.  Under  such  circumstances,  after  the 
Rutherfords  had  declared  their  inability  to  repurchase  or  redeem 
the  property,  we  think  Littlefield  had  the  undoubted  right  to 
call  upon  the  trustee  to  sell.  Indeed,  if  Littlefield  had  declined 
to  pay  the  interest  on  the  trust  deed,  and  he  was  under  no  obli- 
gation to  pay  it,  a  sale  of  the  property  would  have  been  the 
same,  whether  he  had  requested  it  or  not.  Littlefield  made  no 
effort  to  conceal  the  fact  that  the  property  would  be  sold  under 
the  deed  of  trust.  The  sale  was  a  public  one,  and  attended 
by  the  Rutherfords,  and  so  far  as  it  appears,  there  was 
nothing  in  the  conduct  of  Littletield  in  connection  with  the 
sale  liable  to  censure.  The  judgment  of  the  appellate  court  will 
be  aflSrmed. 


266  MORTGAGES. 


Rights  of  Assignee  of  Mortgagee. 

Magie  v.  Reynolds,  51  N.  J.  Eq.  113;  26  A.  150. 

Pitney,  V.  C.  This  is,  in  form,  a  bill  to  foreclose  a  mort- 
gage. The  mortgagors,  Reynolds  and  wifo,  set  up  fniud  in  its 
procurement,  and  by  cross  bill  ask  that  it  be  delivered  up  to  be 
canceled.  The  ultimate  question  in  the  cause  is,  which  of  two 
innocent  parties  —  the  complainant  on  the  one  side,  or  Rey- 
nolds and  his  wife  on  the  other  —  shall  suffer  by  the  fraudulent 
practices  of  a  third  party?  The  mortgage  thousht  to  be  fore- 
closed was  executed  by  the  defendants,  Reynolds  and  wife,  to 
Emma  A.  Sumner,  the  wife  of  Perrin  H.  Sumner,  on  the  2d  of 
January,  1889.  It  was  assigned  by  Mrs.  Sumner  to  the  defend- 
ant, Benjamin  G.  Bloss,  on  the  18th  of  December,  1889,  and 
again  by  Bloss  to  the  complainant  on  the  15th  of  March,  1890. 
The  mortgage  covers  a  small  farm  and  dwelling  situate  at 
Maywood,  near  Hackensack,  Bergen  County,  N.  J.  The  par- 
ticulars of  the  fraud  set  up  in  the  answer  and  cross  bill  are  as 
follows:  That  Reynolds  was  the  owner  of  the  farm  above  men- 
tioned, upon  which  there  was  an  undeveloped  brown  stone 
quarry,  and  being  desirous  to  have  it  developed,  he  applied  to 
Sumner  to  assist  him  therein,  and  that  Sumner  undertook  to 
do  so,  but  that  he  required  some  security  to  be  given  to  invest- 
ors whom  he  might  interest  in  it  that  it  would  turn  out  upon 
experiment  that  there  was  a  sufficient  quantity  of  marketable 
stone  upon  the  premises,  and  for  that  purpose  induced  the 
defendants  to  execute  the  bond  and  mortgage  in  question ;  and 
they  allege  that  in  point  of  fact  they  received  no  consideration 
whatever  for  the  mortgage,  except  as  follows:  That  Sumner, 
upon  their  objecting  to  giving  a  mortgage  under  the  circum- 
stances and  for  the  purpose  just  stated,  proposed  to  give  them  a 
counter  indemnity  in  the  shape  of  a  one-tenth  interest  in  a  farm 
containing  525  acres,  situate  at  Manor,  in  Suffolk  County, 
L.  1.,  which  Sumner  then  pretended  to  own,  and  stated  to  them 
that  it  was  worth  $50,000,  and  that,  relying  upon  the  represen- 
tations, statements,  and  promises  of  Sumner,  they  took  a  deed 
from  Sumner  for  a  one-tenth  interest  in  the  said  tract  of  land. 
That  afterwards  Sumner  informed  them  that  he  had  agreed  to 
sell  his  interest  in  the  farm  to  Bloss,  and  that,  in  order  to  enable 
him  to  make  a  conveyance,  it  was  necessary  that  the  defendants 
should  return  to  him,  Sumner,  the  "deed  which  they  had 
received  from  him,  and  which  had  not  been  recorded,  and 
that  for  such  surrender  Sumner  would  give  them  a  con- 
sideration in  valuable  gold  mining  stock,  from  which  could  at 
once    be    realized    a    sura    sufficient    to    operate    the    quarry. 


RIGHTS    OF    ASSIGNEE  OF  MORTGAGEE.  267 

Believing  these  representations,  tlioy  surrendered  the  deed 
to  Sumner,  and  thereupon  received  a  quantity  of  gold 
mining  stock;  and  by  way  of  making  them  believe  that 
the  stock  was  valuable,  BIoss  loaned  them  $50  on  a  prom- 
issory note  of  Reynolds,  and  took  as  collateral  one  of  the 
certificates  of  stock,  representing  25  shares  of  the  stock  in  a 
gold  mine.  That  the  said  siiares  ot  stock  turned  out  to  be  utterly 
valueless,  and  that  Sumner  promised  to  return  the  bond  and 
mortgage  and  deliver  it  up  to  be  canceled.  The  replication  to 
this  cross  bill  sets  up  that  the  mortgage  was  given  for  a  full  con- 
sideration, namely,  the  conveyance  of  the  interest  in  the  Long 
Island  farm,  and  denies  the  allegations  that  the  mortgase  and 
conveyance  were  made  by  way  of  indemnity  and  counter 
indemnity. 

The  facts  are  that  Reynolds  was  a  retired  oflScer  in  the  marine 
service  of  the  United  States,  having  attained  the  rank  of  cap- 
tain, and  reached  the  age  of  about  65  years,  and  having  been 
dropped  or  discharged  from  the  service,  and  being  very  poor 
and  without  means  of  support,  and  having  no  property  except 
the  farm  in  question.  He  was  a  man  of  no  business  training  or 
capacity  whatever,  of  slender  intellect,  and  entirely  unfit  to  take 
care  of  himself  in  dealing  with  a  shrewd  man  of  the  world.  His 
wife  was  some  years  his  junior,  with  the  ordinary  capacity  of  an 
American  wife,  and  without  any  experience  in  l)usiness.  They 
were  very  poor,  and  the  captain  was  anxious  to  obtain 
employment  and  occupation,  and  also  to  derive  some  income 
from  the  supposed  stone  quarry  on  his  farm.  Some  time 
prior  to  the  1st  of  January,  1889,  one  Willis  was  the  owner  of 
the  farm  in  question  on  Long  Island,  which  was  called  the 
*'  Horn  Tavern  Farm,"  subject  to  a  mortgage  of  $6,000, 
held  by  the  Mutual  Life  Insurance  Company  of  New  York, 
and  some  judgments  against  Willis,  and  arrears  of  taxes, 
etc.,  and  being  desirous  to  sell  the  farm,  he  applied  to  Sumner 
to  do  it,  and  agreed  to  give  him  one-third  of  all  he  got  over 
and  above  the  incumbrance,  and  that  Sumner  procured  a  Dr. 
Marquet  to  take  a  one-third  interest  in  it  at  a  price  actually  paid 
of  over  $2,000,  and  Sumner  received  from  Willis  a  conveyance 
for  the  other  two-thirds  to  his  son,  Arthur  E.  Sumner,  who  sub- 
sequently, in  December,  1888,  conveyed  it  to  Emma  A.  Sumner, 
so  that  Emma  A.  Sumner,  on  the  last  of  December,  1888,  had 
standing  in  her  the  title  to  two-thirds  of  this  Long  Island  farm. 
I  am  satisfied  from  the  evidence  of  Dr.  Marquet  and  Bloss  and 
the  circumstances  that  the  farm  was  worth  nothing  above  the 
incumbrances.  Such  being  the  situation,  in  the  middle  or 
towards  the  last  of  the  year  1888,  Reynolds  was  introduced  to 


268  MOUTGAGE8. 

Mr.  Sumner,  who  had  an  office  in  Broadway,  New  York,  and 
solicited    his    aid    in    developing    the    stone    quarry.       Sumner 
immediately  set  about  procuring  a  mortgage  from  the  captain 
and  his  wife  on  their  farm,  and,  according  to  their  ytory,  first 
tried  to  trade  them  some  coal  lands  and  other  matters  of  that 
kind,  and  finally,  as  they  both  swear,  he  induced  them  to  give 
him  the  mortgage  in  question,  substantially  under  the  circum- 
stances and  for  the  reasons  set  out  in  their  answer  and  cross  bill, 
viz.,  as  an  indemnity  to  secure  persons  taking  an  interest  in  the 
stone  quarry,  and  that  the  conveyance  of  the  tenth  interest  in  the 
Long  Island  farm  was  given  as  a  security  to  them  against  the 
mortgage.     This  evidence  on  their  part  is  denied  by  Sumner, 
and,  in  point  of  fact,  on  the   31st   of  DecGml)er,   1888,  Capt. 
Reynolds  and  wife  and  Arthur  E.  Sumner  entered  into  a  contract 
in  writing,  which  is  made  up  partly  of  print  and  partly  of  man- 
uscript, and  is  full  of  interlineations  and  erasures,  so  that  it  is 
quite  difficult  to  decipher,  and  sonie  of  the  interlineations  are  in 
different  ink  from  the  other  part  of  the  writing.     None  of  them 
are  noted,  so  that  it  is  impossible  now  to  determine  from  the  face 
of  the  paper  what  parts  were  actually  written  in  it  at  the  time  it 
was  signed.     The  purport  of  it  is  that  Capt.  Reynolds  and  wife, 
in  consideration  of  one  dollar,  agreed  to  grant  and  convey  unto 
Arthur  E.   Sumner  a  first    mortgage    and  bond  on  the  Bergen 
county  farm,  to  be  due  in  five  years  from  the  date,  to  bear  inter- 
est at  the  rate  of  6  per  cent  per    annum,  semi-annually;   and 
Sumner  agreed  to  grant  and  convey  unto  Reynolds  and  wife  an 
undivided  one-tenth  interest  in  and  to  the  Long  Island  farm  by 
quit-claim  deed,  but,  in  case  the  land  in  the  meantime  should  be 
deeded  to  a  company,  Reynolds  was  to  have  one-eighth  of  the  sur- 
plus stock  of  the  company  after  the  treasury  stock  had  been  de- 
ducted.    It  is  stated  in  the  contract  that  the  entire  tract  of  land 
was  subject  to  a  mortgage  of  $6,000,  held  by  the  Mutual  Life  Insur- 
ance Company  of  New  York,  and  other  liens,  judgments  and  taxes 
and  that  the  judgments  are  to  be  taken  care  of  and  paid  by  L. 
Marquet  as  per  his  agreement;  that  the  deed  or  the  stock  in  the 
company  to  be  formed  to  develop  the  Long  Island  farm  were  to 
be  delivered  on  or  about  the  25th  day  of  June,  1889,  but  the 
mortgage  was  to  be  delivered  directly,  the  mortgage  to  be  made 
to  Sumner,  or  to  any  one  he  might  designate;  and  there  is  an 
interlineation  in  a  different  ink  to  the  effect  that  no  warranty  or 
representations  have  been  made  by  P.  H.  Sumner  or  any  one  as 
to  the  value  of  said  farm.     Reynolds  and  wife  admit  their  sig- 
nature to  this  paper,  but  they  have  no  recollection  of  having 
sisfned  it,  or  of  knowing  the  contents  or  effect  of  it:  and  it  is 
manifest  that  at  this  time,  and  for  a  considerable  period  after- 


RIGHTS    OF    ASSIONIOE    OF    MORTGAGEE.  269 

wards,  they  had  perfect  confidence  in  Sumner,  and  would  have 
signed  aiiythinpi;  he  asked  them." 

It  will  he  observed  that  at  the  time  this  contract  was  entered 
into  with  Arthur  E.  Sumner  the  title  to  the  premises  was  not  in 
him,  but  in  his  mother.  On  the  20th  of  February,  1889,  Mr. 
and  Mrs.  Reynolds  signed  another  agreement,  in  which  they 
agreed  to  accei)t  one-tenth  of  the  surj)his  of  the  stock  of  a  com- 
pany to  be  formed  alter  the  stock  to  be  put  into  the  treasury  of 
the  comi)any  has  been  deducted  in  payment  in  full  of  the  mort- 
gage of  $5,000  above  stated.  The  contract  does  not  state 
what  the  company  was  to  be  formed  for,  but  the  allegation  and 
infeience  is  that  it  was  to  be  formed  to  develop  the  Long  Island 
farm,  to  turn  it  into  a  cranberry  farm.  On  the  26th  of  March, 
1889,  Mr.  and  Mrs.  Sumner  executed  a  deed  to  Reynolds  and 
wife,  in  consideration  of  one  dollar  and  other  considerations, 
for  the  one-tenth  part  of  the  Long  Island  farm,  "subject  to  a 
mortgage  given  to  the  Mutual  Life  Insurance  Company  of  New 
York  to  secure  the  payment  of  $G,000  and  interest,  and  also  sub- 
ject to  certain  judgments  now  on  record  in  said  county  of  Suf- 
folk." That  deed  was  acknowledged  on  the  same  day,  and 
delivered,  but,  at  the  request  of  Sumner,  was  not  recorded 
until  the  21st  of  August,  1889,  on  which  day  a  suit  was  com- 
menced in  the  Supreme  Court  of  New  York  for  Suffolk  County 
by  Willis  and  wife,  the  original  owners  of  the  Long  Island  farm, 
against  the  three  Sumners,  praying  that  the  conveyance  from 
Willis  to  Arthur  E.  Sumner  and  from  him  to  Emma  A.  Sumner 
might  be  set  aside  on  the  ground  that  it  was  procured  by  fraud. 
This  suit  was  undoubtedly  the  reason  for  the  recording  of  this 
deed  and  others  now  to  be  mentioned.  Shortly  before  that 
date  —  August,  1889  —  Sumner  introduced  Reynolds  and  wife 
to  BIoss,  and  the  result  of  that  introduction  was  that  on  the 
14th  of  August,  1889,  Mr.  and  Mrs.  Reynolds  conveyed  their 
one-tenth  interest  to  Bloss;  and  Sumner  and  his  wife  having, 
on  the  29th  of  July,  1889,  by  deed  of  that  date,  recorded  Aug- 
ust 23,  1889,  conveyed  seventeen-thirtieths  of  their  interest  to 
Bloss,  Bloss  now  held  two-thirds  of  the  title  to  the  Manor  farm. 
As  a  consideration  from  Bloss  to  the  Reynoldses  for  the 
conveyance  by  the  Reynoldses  to  Bloss  of  the  one-tenth 
interest  in  the  Long  Island  farm,  Bloss  transferred  to  the 
Reynoldses  275  shares,  par  value  of  $10  each,  of  the  Bay  State 
Gravel  Mining  Company  of  Butte  County,  Cal.,  and  200  shares 
of  the  Queen  Bee  Gold  Mining  Company  of  Dakota,  the  par 
value  of  which  is  not  stated.  These  shares  were  said  to  be 
worth  $2  a  share  at  the  time.  Bloss  also  transferred  to  him  one 
other    certificate   of  25  shares  of  some  kind  of  mining  stock, 


270  MORTGAGES. 

which  Bloss  took  back  as  colhiteral  security  for  $50  advjincod  to 
Capt.  Reynolds,  for  which  ho  took  his  note.  The  aggi'egate 
value  of  all  the  shares  transferred,  ut  the  value  phiced  upon  them 
at  the  time,  was  only  about  $2,500.  Sumner  and  wife  and  son 
answered  the  suit  brought  by  Willis  and  wife  against  them,  and 
set  up  that  they  had  no  further  interest  in  it,  because  they  had 
conveyed  all  their  interest  to  Bloss.  The  complaint  was  amended 
by  bringing  in  Bloss  and  Reynolds  and  wife.  Bloss  answered, 
denying  the  fraud,  and  claiming  to  be  a  bona  Jide  purchaser  for 
a  valuable  consideration  without  notice  of  the  two-thirds  con- 
veyed to  him,  but  does  not  set  out  in  his  answer  what  that  con- 
sideration was.  Reynolds  and  wife  did  not  answer.  The  cause 
came  on  for  trial  before  Judge  Bartlett  of  the  Supreme  Court  in 
the  summer  of  1890,  both  Bloss  and  Reynolds  being  present  at  the 
trial  and  being  sworn  as  witnesses,  and  the  court  found  as  a  mat- 
ter of  fact  that  the  conveyance  from  Willis  and  wife  to  Arthur 
E.  Sumner  was  absolute  as  to  one-third,  but  as  to  the  other  one- 
third  it  was  in  trust,  and  that  as  a  matter  of  fact  the  defend- 
ants Reynolds  and  wife  received  their  title  to  one-tenth 
merely  as  a  collateral  security,  and  that  at  the  suggestion  of 
Sumner  they  transferred  the  title  to  Bloss,  and  that  Bloss  was 
not  a  purchaser  for  value,  and  that  he  held  the  title  for  and  in 
the  interest  of  Sumner.  In  the  meantime  Sumner  and  wife,  on 
the  18th  of  December,  1889,  assigned  the  Reynolds  mortgage  in 
question  to  Bloss  by  deed  which  stated  a  consideration  of  $5,000. 
That  assignment  was  recorded  on  the  1st  of  February,  1890,  and 
Bloss,  on  the  15th  of  March,  1890,  assigned  it  to  Abby  M. 
Magie,  the  complainant  herein,  and  that  assignment  was  recorded 
on  the  15th  of  April,  1890.  No  money  was  paid  directly  by 
Bloss  to  Sumner  for  the  assignment  from  Mrs.  Sumner  to  Bloss, 
and  the  evidence  of  Sumner  and  Bloss  on  the  subject  of  the  con- 
sideration is  unsatisfactory.  As  to  the  assignment  from  Bloss  to 
the  complainant,  however,  the  evidence  shows  that  Bloss  nomi- 
nally, but  Sumner  really,  who  was  the  actual  owner  at  that  time, 
received  a  valuable  consideration  from  Mrs.  Magie  for  it.  That 
consideration  arose  in  this  wise :  Mrs.  Magie  is  an  aged  lady, 
residing  in  Kansas  City,  Mo.,  and  has  no  personal  knowledge  of 
any  of  these  transactions.  She  is  represented  here  by  her 
daughter,  a  Mrs.  Terhune,  a  very  worthy  lady,  residing  in 
Brooklyn,  who  had  the  misfortune  to  come  into  contact  with 
this  man  Sumner.  Mrs.  Magie,  the  complainant,  was  the  owner 
of  a  house  and  lot  at  Roselle,  in  Linden  township.  Union 
County,  N.  J.,  and  on  the  20th  of  November,  1889,  conveyed 
that  property  to  Benjamin  G.'  Bloss  by  deed  which,  though 
dated    in    1884,    was    not    delivered    or    recorded    until    the 


RIGHTS    OF   ASSIGNEE    OF   MORTGAGEE.  271 

20th  of  November,  1889.  It  was  in  fact  executed  in  1884,  with 
the  names  of  the  grantee  left  blank,  and  in  November,  1889, 
Bloss'  name  was  inserted  in  that  blank.  Sumner,  who  con- 
ducted the  transaction,  knew  of  this,  and  was  willing  to  accept 
the  deed  under  those  circumstances.  Bloss,  on  the  11th  of 
November,  and  shortly  before  the  deed  from  Mrs.  Magie  to  him 
was  lodged  for  record,  executed  a  mortgage  to  Mrs.  Magie  upon 
the  property  so  conveyed  to  him,  to  secure  the  payment  of 
$4,250,  part  of  the  consideration  money,  in  five  years  from 
date.  Mrs.  Terhune  had  become  the  owner,  through  the  agency 
of  Sumner,  of  a  tract  of  land  adjoining  the  Horn  Tavern  farm 
on  Long  Island  upon  which  Mrs.  Sumner  held  a  mortgage  of 
$1,000,  and  Sumner  proposed  to  Mrs.  Terhune  that  if  she  would 
cause  her  mother,  Mrs.  Magie,  to  assign  to  his  wife  the  mort- 
gage which  she  held  against  Bloss  for  $4,250  on  the  Roselle 
property  he  would  procure  Bloss  to  assign  to  her  an  interest  in 
the  Reynolds  mortgage  here  in  question,  and  would  discharge 
the  mortgage  which  Mrs.  Sumner  held  upon  Mrs.  Terhune's 
property  in  Suffolk  County;  and  that  arrangement  was  made, 
Mrs.  Magie,  on  the  llth"  of  March,  1890,  assigned  to^  Mrs. 
Sumner  the  mortgage  which  she  held  against  Bloss  on  the  Roselle 
property,  and  Mrs.  Sumner  assigned  to  Mrs.  Magie  the  mort- 
gage on  the  latter's  property  on  Long  Island,  and  Bloss  there- 
upon assigned  to  Mrs.  Magie  the  mortgage  here  in  question  to 
the  extent  of  the  sum  of  $3,042.74,  and  Bloss  guaranteed  the 
payment  of  it  to  that  extent  to  Mrs.  Magie.  Mrs.  Sumner 
immediately  released  to  Bloss  the  mortgage  so  assigned  by  her  to 
Mrs.  Magie,  and  took  a  new  mortgage  in  its  place,  and  subse- 
quently procured  the  property  at  Roselle  to  be  sold  for  taxes, 
and  it  was  bought  in  by  Mrs.  Sumner.  So  that  Mrs.  Sumner  at 
present  holds  the  tax  title  to  the  Roselle  property,  and  a  mort- 
gage upon  it,  and  Mrs.  Magie  holds  the  title  to  the  Reynolds 
mortgage  to  the  extent  of  a  little  over  $3,000.  I  should  have 
observed  that  at  the  very  time,  to  wit,  December  31,  1888,  when 
these  transactions  occurred  between  Reynolds  and  wife  and 
Sumner,  the  mortgage  held  by  the  Mutual  Life  Insurance  Com- 
pany of  New  York  on  the  Long  Island  farm  had  been  foreclosed, 
proceeded  to  decree,  and  the  property  was  actually  advertised 
for  sale  by  the  sheriff;  and  afterwards  (just  when  does  not 
appear)  the  property  was  sold  and  bought  l)y  the  company  at  a 
price  less  than  enough  to  pay  the  mortgage  ;  but  the  Mutual  Life 
Company  gave  the  parties  who  appeared  to  be  interested  the 
privilege  of  redeeming  it  by  paying  $5,000,  and  those  parties  at 
the  hearing  were  admitted  to  be  Mr.  Perrin  H.  Sumner  as  to 
one-half,  and  an  outside  party,  not  connected  with  these  transac- 


272  MORTOAQES. 

tions,  —  one  Whitlock, —  as  to  the  other  part;  thus  confirming 
the  finding  of  Judge  Bartlett  that  Bloss  never  really  had  any 
interest  whatever  in  that  farm. 

It  al)undantly  appears  that  the  shares  of  mining  stock  which 
Capt.  Reynolds  received  were  of  no  value  whatever,  and  the 
evidence  of  Bloss  and  Sumner  failed  to  satisfy  me  that  any  con- 
sideration was  paid  by  Bloss  to  Sumner  on  the  assignment  of 
the  mortgage.  But  whether  any  consideration  passed  between 
Bloss  and  Sumner  is  immaterial,  since  both  swear  that  at  the 
date  of  the  transfer  to  Mrs.  Magie  Bloss,  interest  in  it  had 
ceased,  and  he  held  it  for  the  benefit  of  Sumner  or  his  wife.  I 
am  also  satisfied  that  neither  Capt.  Reynolds  nor  his  wife  under- 
stood the  nature  or  character  of  the  contract  of  December  31, 
1888,  which  they  signed,  and  also  that  the  subsequent  transfer 
of  the  share  in  the  Manor  farm  to  Bloss  was  done  at  the  instance 
and  request  of  Sumner,  and  without  any  idea  on  their  part  that 
by  so  doing  they  were  giving  any  additional  strength  to,  or 
varying  the  character  of  the  mortgage.  It  is  further  in  proof 
that  no  demand  was  ever  made  by  Sumner  or  his  wife  upon 
Capt.  Reynolds  for  interest ;  that  a  formal  demand  was  made  by 
Bloss,  but  never  followed  up,  and  upon  the  assignment  by  Bloss 
to  Mrs.  Magie  the  bond  and  mortgage  was  retained  by  Bloss, 
and  that  he  paid  interest  to  Mrs.  Magie  on  the  portion  of  it 
which  he  did  assign  to  her  and  finally,  failing  to  pay,  she  took 
measures  to  get  possession  of  the  bond  and  mortgage  itself, 
which  she  finally  did,  and  brought  this  suit  on  the  17th  of 
November,  1891,  nearly  three  years  after  the  mortgage  was 
given,  and  more  than  two  years  after  the  first  default  in  inter- 
est. Mrs.  Magie  made  no  inquiries  of  Capt.  Reynolds  or  wife 
or  any  one  in  their  interest  as  to  the  validity  of  this  mortgage, 
and  took  it  blindly  upon  the  assurance  of  Sumner.  In  point  of 
fact  Mrs.  Terhune  applied  to  Sumner  to  sell  her  mother's 
house  and  lot  to  Roselle.  Sumner  found  a  purchaser  in  Bloss, 
though  I  doubt  if  Bloss  was  anything  more  than  a  figurehead 
for  Sumner.  He  also  induced  her  to  purchase  the  property  in 
Suffolk  County,  and  his  hand  is  visible  throughout  all  the  vari- 
ous transactions  heretofore  detailed.  Without  going  through 
the  details  of  the  various  interviews  between  Capt.  Reynolds 
and  wife  and  Sumner  and  Bloss,  I  am  satisfied  that  the  mort- 
gage was  procured  by  fraud,  without  any  consideration,  unless 
the  shares  of  mining  stock  may  be  so  held,  and  that  Bloss' 
connection  with  the  affair  was  entirely  in  the  interest  of  Sum- 
ner, he  lending  himself  to  Sumner  to  aid  him  in  defrauding 
Reynolds  and  wife,  and  that  he  never  had  any  interest  in  the 
bond  and  mortgage;   so  that,  if  either  Mrs.  Sumner  or  Bloss 


RIGHTS    OF   ASSIGNEE   OF   MORTGAGEE.  273 

were  complainants  in  the  cause,  the  result  would  not  be  open 
to  a  moment's  doubt. 

The  well-settled  rule  in  this  State,  as  well  as  in  other  equitable 
jurisdictions,  is  that  an  assignee  of  a  bond  and  mortgage  takes 
it  subject  to  all  the  equitable  defenses  which  the  original  obligors 
and  mortgagors  have  thereto.  This  is  so  at  law  as  well  as  in 
equity.  It  was  so  held  at  law  in  an  action  on  a  bond  in  Barrow 
V.  Bispham,  11  N.J.  Law,  110,  after  an  elaborate  consideration 
of  the  authorities.  And  the  same  doctrine  was  held  in  equity 
by  Chancellor  Vroom  in  Shannon  v.  Marselis,  1  N.  J.  Eq.  413. 
At  page  424  the  chancellor  examines  the  authorities  in  England 
and  New  York,  and  quotes  with  approbation  the  language 
of  Chancellor  Kent  in  which  he  states  that  it  is  the  duty  of  the 
assignee  to  make  inquiries  of  the  obligor  or  mortgagor  or  per- 
son owning  the  equity  of  redemption  before  taking  an  assign- 
ment of  the  bond  and  mortgage.  And  see  the  remarks  of  the 
lord  chancellor  in  Matthews  v.  Wallwyne,  4  Ves.  118,  at  page 
127.  This  ruling  was  followed  in  Jaqnes  v.  Esler,  4  N.  J.  Eq. 
461,  by  Chancellor  Haines  and  by  Chancellor  Green  in  Wood- 
ruff V.  Depue,  14  N.  J.  Eq.  168,  and  by  Chancellor  Zabriskie  in 
Conover  v.  Van  Mater,  18  N.  J.  Eq.  481,  and  again  by  the  same 
judge  in  Coursen  v.  Canfield,  21  N.  J.  Eq.  92,  and  has  never 
been  questioned  or  doubted,  and  finally  has  the  approval  of  the 
court  of  errors  and  appeals  in  Atwater  v.  Underhill,  22  N.  J. 
Eq.  599,  at  page  606.  The  principle  underlying  this  rule  is  that 
the  mortgao-e  is  a  mere  incident  of  the  debt  which  it  is  intended 
to  secure,  and  a  defense  to  the  debt  is  a  defense  to  the  mort- 
gage. If  the  mortgage  is  given  to  secure  a  negotiable  promis- 
sory note,  and  the  note  is  negotiated  for  value  in  the  ordinary 
way  before  maturity,  the  holder  will  hold  it  and  the  mortgage 
free  from  all  defenses.  2  Jones  Mortg.,  §  1487,  and  cases 
cited.  But  if  the  mortgage  be  given  to  secure  a  non-negotiable 
instrument,  the  assignee  takes  it  subject  to  all  defenses  to 
the  bond  or  other  instrument  manifesting  the  indebtedness. 
In  this  aspect  the  assignment  of  a  mortgage,  though  it 
assume  (as  it  usually  does)  the  form  of  a  conveyance  of 
land,  differs  from  an  ordinary  conveyance  in  which  the 
grantor  for  value  takes  the  title  free  from  all  prior  convey- 
ances and  equities  of  which  he  has  no  actual  or  construc- 
tive notice.  Carpenter  v.  Longan,  16  Wall.  271,  at  page  275; 
Matthews  v,  Wallwyne,  4  Ves.  118,  at  page  129;  C6otc  Mortg., 
p.  301  et  seq.  A  mortgagor  and  obligor  may,  however,  so  con- 
duct himself  as  to  mislead  a  proposed  assignee,  and  estop 
himself  from  setting  up  his  defense;  and  I  have  looked  with 
care  into  this  case  to  see  if  I  could  find  anything  in  the  conduct 

18 


274  MORTGAGES. 

of  Mr.  and  Mrs.  Reynolds  wlii(;li  would  estop  them  as  against 
Mrs.  Magic.  It  is  true  that  Bloss  swesirs  tiiat  shortly  before  he 
took  the  assignment  from  Mrs.  Sumner  he  talked  with  Mr.  and 
Mrs.  Reynolds  about  this  mortgage,  and  they  declared  it  was  a 
good  mortgage,  and  seemed  anxious  that  he  should  take  it,  and 
advance  the  money  upon  it,  and  it  is  evident  from  his  evitlence, 
if  truthful,  that  they  at  that  time  expected  that,  if  Bloss  did 
advance  the  money  upon  it,  they  woukl  get  it;  and  if  he  had 
done  so,  upon  the  hypothesis  that  his  evidence  is  true,  the 
mortgage  would  have  been  a  valid  security  in  his  hands.  But 
the  fact  is  that  I  am  not  satisfied  that  Bloss  ever  advanced  any- 
thing at  all  upon  the  mortgage  to  Sumner  or  his  wife,  and  the 
undoubted  fact  is  that  if  he  did  so  he  had  been  repaid  all  that  he 
advanced  prior  to  the  date  of  the  transfer  to  Mrs.  Magie,  because, 
as  before  remarked,  Sumner  or  his  wife  were  the  undoubted 
owners  of  the  mortgage  at  that  time,  and  received  from  Mrs. 
Magie  the  consideration  for  its  assignment.  Bloss  assigned  it  at 
their  request,  and  for  their  benefit,  and  at  that  time  claimed 
no  interest  in  it.  No  interest  was  ever  paid  on  the  mortgage, 
nor  is  there  any  indorsement  of  interest  upon  it,  so  that  the 
complainant  was  not  misled  by  anything  of  that  sort;  and, 
as  before  observed,  she  made  no  inquiries  with  regard  to  it 
from  either  Reynolds  or  his  wife  or  anybody  representing 
them. 

Two  matters  have  been  put  forward  as  furnishing  some 
ground  for  an  estoppel.  One  is  a  contract  entered  into  between 
a  man  by  the  name  of  Randall  and  Mr.  and  Mrs.  Reynolds  on  the 
10th  of  October,  1889,  in  which  Reynolds  and  wife  agreed  to  ex- 
change with  Randrtll  10,000  shares  of  stock  in  the  Maywoos 
Brown  Stone  Quarrying  Company  (which  had  been  organized  for 
the  purpose  of  developing  the  stone  quarry)  for  a  lot  of  land  in 
Norwalk,  Conn.,  owned  by  Randall,  and  in  that  contract  there  is 
a  statement  that  the  property  of  the  quarrying  company  consisted 
of  about  sixteen  acres  of  land  underlaid  with  brown  stone, 
**  subject  to  a  mortgage  of  $5,000,  with  interest  at  five  per  cent 
per  annum."  This  clause  in  this  contract  is  relied  upon  as  a 
recognition  by  Reynolds  and  wife  of  this  mortgage,  but  it  does 
not  appear  that  Mrs.  Magie  ever  saw  it,  or  in  any  wise  relied 
upon  it.  Then,  again,  there  is  produced  a  deed  dated  the  20lh 
of  February,  1889,  made  very  shortly  after  the  execution  of  this 
mortgage,  by  Reynolds  and  wife  to  the  stone  quarrying  com- 
pany of  a  part  of  the  mortgaged  premises,  said  to  contain 
about  seventeen  acres  of  land,  and  which  was  duly  re- 
corded, and  in  that  deed  is  this  clause:  "  Subject  to  one 
mortgage  now  on  the  said  premises,  given  to  secure  the  pay- 


RIGHTS    OF    ASSIGNEE    OF    MORTGAGEE.  275 

ment  of  $5,000  and  interest  thereon."  This  reference  to  a 
mortgage,  like  that  in  the  contract  to  Randall,  docs  not  identify 
it,  and  it  does  not  appear  in  this  case  either  that  Mrs.  Magie  or 
her  agent  ever  saw  or  relied  upon  that  deed  in  any  way.  The 
only  fact  which  has  at  any  time  struck  me  as  affording  the  least 
ground  of  estoppel  is  the  forbearance  of  Reynolds  and  wile  to 
take  any  steps  to  have  this  mortgage  canceled  and  removed.  It 
will  be  observed  that  it  was  made  and  executed  on  the  2d  of  Jan- 
uary, 1889;  that  it  was  assigned  by  Sumner  to  Bloss  on  the  18th 
of  December,  1889,  and  that  this  as^signment  was  recorded  on 
the  Ist  of  February,  1890,  and  that  it  was  assigned  by  Bloss  to 
Mrs.  Magie  on  the  15th  of  March,  1890.  Whe^i  asked  upon  the 
stand  why  they  had  allowed  the  matter  to  remain  so  long,  Rey- 
nolds and  wife  said  that  they  were  at  all  times  poor  ;  that  at  first 
they  had  confidence  in  Sum.ner;  then  they  began  to  lose  confi- 
dence, and  asked  him  to  return  the  mortgage,  and  that  he  prom- 
ised from  time  to  time  to  do  so,  and  that  they  relied  upon  his 
promises,  and  then  that  they  consulted  counsel  in  New  York,  who 
promised  ^o  do  something  for  them,  but  was  taken  sick  and  died, 
and  that  in  the  meantime  they  were  in  hopes  of  managing  to  get 
the  mortgage  out  of  his  hands  by  friendly  negotiations,  and  that 
finally  they  put  the  matter  into  the  hands  of  Mr.  Campbell, 
their  counsel  in  Hackensack,  who,  for  some  undisclosed  rea- 
son, did  nothing  until  the  bill  to  foreclose  was  filed  in  this 
cause.  But  upon  full  consideration  I  have  come  to  the  conclu- 
sion that  it  was  not  the  duty  of  Mr,  and  Mrs.  Reynolds  to  com- 
mence suit  to  have  this  mortgage  canceled,  and  that  their  not 
doing  so  forms  no  ground  of  estoppel.  They  had  a  right  to 
rely  upon  the  well-settled  rule  of  law  that  the  purchaser  of  a 
chose  in  action  of  this  character  takes  it  subject  to  all  equities, 
and  that  he  has  the  power  to  protect  himself  by  making  inquiries 
at  the  proper  sources  ;  and  therefore  they  are  entitled  to  a  decree 
that  the  complainant's  bill  be  dismissed  as  to  them,  and  that  they 
are  entitled  to  have  the  bond  and  mortgage  delivered  up  to  be 
canceled. 

This  result  renders  it  unnecessary  to  determine  the  question 
arising  as  against  Mrs.  Day,  who,  in  the  summer  of  1889,  pur- 
chased a  small  piece  of  this  farm  from  Mr.  and  Mrs.  Reynolds, 
and  entered  into  immediate  possession  of  it.  Reynolds  pro- 
cured from  Sumner  a  release  of  this  lot  which  he  handed  to 
Mrs.  Day,  with  her  deed.  It  was  executed  before  the  assign- 
ment from  Sumner  and  wife  to  Bloss.  Mrs.  Day,  however, 
failed  to  get  it  recorded  until  this  bill  was  filed.  I  am  referred 
on  this  part  of  the  case  to  the  act  of  February  25,  1880 
(P.  L.,  p.  53);   Supp.  Revision,  p.  134,  §§  14-16.     The  third 


276  MORTGAGES. 

section  of  that  act  provides  "  that  when  any  such  release,  or 
deed  intended  to  operate  as  a  release,  made  and  executed  after 
this  act  shall  take  effect,  is  not  recorded,  or  when  in  such  release 
or  deed  the  intention  to  operate  as  a  release  shall  not  be  plainly 
manifest,  as  in  the  act  provided,  any  payment  made  in  good 
faith  and  without  actual  notice  of  such  release  or  deed,  to  the 
holder  of  any  mortgage  or  judgment,  from  the  lien  and  effect  of 
which  any  lands  may  be  thereby  released,  and  any  assignment 
of  such  mortgage  or  judgment,  or  of  any  interest  therein,  to  any 
person  not  having  actual  notice  of  such  release  or  deed,  shall  be 
as  valid  and  effectual  as  if  said  release  or  deed  had  not  been 
made  ;  and  any  lands  released  from  the  lien  and  effect  of  any 
mortgage  or  judgment  by  any  such  release  or  deed  not  recorded 
shall  be  bound  by  any  proceedings  and  sale  under  and  by  virtue 
of  such  mortgage  or  judgment  as  if  the  said  lands  had  not  been 
released  from  the  lien  and  effect  thereof."  If  I  had  come  to  a 
different  conclusion  as  to  the  validity  of  the  mortgage  in  com- 
plainant's hands,  the  act  would  have  given  rise  to  a  serious 
question.  But  the  statute  clearly  deals  with  a  valid  mortgage 
upon  which  something  is  due,  and  cannot  be  used  to  give  life  to 
a  mortgage  upon  which  nothing  is  due  by  investing  the  assignee 
with  the  protection  of  the  position  of  a  bona  fide  purchaser  of 
land  for  value. 

It  was  further  urged  that  the  brown  stone  quarrying  company 
is  not  in  a  situation  to  take  advantage  of  the  defense  set  up  by 
Reynolds  and  wife.  As  a  part  of  the  plan  for  developing  the 
brown  stone  quarry,  a  company  which  had  been  previously 
organized  by  Capt.  Reynolds  for  that  purpose  was  given  life  by 
the  election  of  officers,  etc.,  of  which  Mr.  Reynolds  was  one 
and  Sumner  was  another  and  a  friend  of  Sumner  was  a 
third,  and  a  conveyance  made  as  above  stated,  to  this  cor- 
poration of  a  portion  of  the  mortgaged  premises.  That 
deed  was  dated  the  20th  of  February,  1889,  and  is  without 
any  consideration  mentioned  in  it  whatever,  and  contained 
the  clause  hereinbefore  recited.  It  does  not  identify  the 
mortgage,  and  it  does  not  declare  that  the  amount  due  on 
the  mortgage  is  taken  as  part  of  the  consideration  money,  and 
the  proof  fails  to  show  any  arrangement  to  that  effect.  At  that 
time  Reynolds  owned  the  whole  stock,  except  a  few  shares 
transferred  to  Sumner  for  aiding  in  its  organization.  The  con- 
veyance was  made  without  any  consideration  in  fact,  was  so 
understood  at  the  time,  and  there  could  be,  of  course,  no  under- 
standing at  the  time  that  the  amount  of  $5,000,  mentioned  in  the 
mortgage,  was  taken  as  a  part  of  the  consideration  money,  or 
that  that  amount  was  to  be  paid  by  the  quarry  company.     As 


RIGHTS    OF    ASSIGNEE    OF    MORTGAGEE.  277 

the  conveyance  was  for  only  a  portion  of  the  land  covered  by 
the  mortgage,  and  the  presumption,  in  the  absence  of  any  facts 
or  expression  showing  a  contrary  intent,  would  be  that  the 
understanding  between  the  parties  was  that  the  mortgaged 
promises  were  to  bear  the  burden  of  the  mortgage  in  the 
inverse  order  of  their  conveyance,  and  that  the  portion  of  the 
{)remises  not  included  in  the  conveyance  to  the  quarry  comi)any 
should  be  sold  first  to  pay  the  mortgage.  Gray  v.  Hattersley 
(N.  J.  Ch.),  24  Alt.  Rep.  721.  Andl  think  that  the  reference  to 
the  mortjrage  in  the  deed  does  not  have  the  effect  of  casting 
the  burden  of  it  u[)on  the  premises  conveyed,  but  may 
he  accounted  for  by  the  fact  that  the  conveyance  contains 
full  covenants  of  seisin  and  warranty.  No  doubt  the 
object  of  its  insertion  in  the  deed,  which  is  in  the  hand- 
writing of  Sumner,  was  to  fortify  his  position  as  holder  of  the 
mortgage.  But  the  question  here  does  not  arise  between  the 
grantor  and  grantee  of  a  part  of  the  mortgaged  premises  as  to 
which  part  shall  bear  the  burden  of  the  mortgage,  —  a  question 
in  which  the  mortgagee  or  his  assignee  is  usually  not  interested  — 
but  it  arises  between  the  grantee  of  a  part  of  the  mortgaged 
premises  and  the  holder  of  the  mortgage,  and  is  essentially  a 
different  question  from  the  other.  No  doubt,  if  a  grantee  of  a 
portion  of  premises  subject  to  a  mortgage  assumes  the  payment 
of  a  certain  sum  —  the  whole  or  a  part  of  the  sum  due  on  the 
mortgage  —  such  assumption  being  in  payment,  in  whole  or  in 
part,  as  the  case  may  be,  of  the  purchase  price  which  he  agrees 
to  pay  his  grantor,  such  put  chaser  is  ordinarily  estopped  from  set- 
ting up  any  defense  against  the  mortgage  so  assumed,  and  the 
reason  is  tliat  he  has  the  money  in  his  hands  to  pay  it.  I  say 
"  ordinarily,"  because  it  seems  to  me  that  this  general  rule  must 
be  subject  to  a  notable  exception.  The  assumption  is  a  matter 
of  convention  between  the  grantor  and  grantee,  and  the  right  to 
enforce  it  rests  primarily  in  the  former,  and  where  it  has  been 
enforced  in  favor  of  the  holder  of  the  mortgage  it  has  been  done 
upon  the  principle  that  the  holder  of  the  mortgage  is  subrogated 
to  the  rights  of  the  grantor  in  that  behalf.  In  the  case 
in  hand,  if  the  complainant's  mortgage  received  additional 
validity  by  reason  of  the  conveyance  by  the  mortgagors, 
Reynolds  and  wife,  to  the  quarry  company,  such  addi- 
tion comes  to  it  through  subrogation  to  the  right  of  the 
mortgagors  under  their  contract  with  the  quarry  company. 
In  order  to  derive  a  benefit  from  that  transaction,  the  holder 
of  the  mortgage  cannot  thrust  upon  the  mortgagors  and 
grantors  the  benefit  of  a  right  which  they  do  not  and  never 
did  claim.     The   mode  in   which  the   mortgagor   and    grantor 


278  MORTGAGES. 

in  such  cases  is  benefited  is  l)y  hiivino;  the  whole  or  a  ])art  of  the 
purchase  money  devoted  to  the  payment  of  his  del)t,  and  the 
rehef  of  his  other  property  fiom  the  lien  of  the  mortgage;  and 
if,  before  any  payment  is  made  by  the  grantor  to  tlic  holder  of 
the  morto-age,  the  grantor  and  mortgagor  himself  is  forced  to 
pay  it,  or  does  it  voluntarily,  as  he  may  well  do,  a  right  would 
at  once  arif^e  to  him  to  call  on  the  grantee  to  pay  to  him  the 
amount  instead  of  to  the  holder  of  the  mortgage.  In  so  doing 
he  would  be  demanding  only  what  was  originally  his  own.  It 
seems  to  me  to  follow  that  if,  before  any  payment  by  the 
grantee  to  the  holder  of  the  mortgage,  the  grantor  discovers  that 
neither  he  nor  his  land  is  liable  to  pay  anything  whatever  to 
the  holder  of  the  mortgage,  he  may  rescind  his  contract  with  the 
grantee,  and  countermand,  so  to  speak,  his  direction  to  him  to 
make  payment  to  the  holder  of  the  mortgage,  and  release  him 
from  his  obligation  in  that  behalf.  This  view  is  not,  as  I  think, 
in  conflict  with  the  decisions  upon  this  topic.  Horton  v.  Davis, 
26  N.  Y.  495  ;  Freeman  v.  Auld,  44  N.  Y.  50 ;  Ritter  v.  Phillips, 
53  N.  Y.  583;  Crowell  v.  Hospital,  27  N.  J.  Eq.  650;  Brolasky 
V.  Miller,  9  N.  J.  Eq.  807  ;  Vau  Winkle  v.  Earl,  26  N.  J.  Eq. 
242. 

The  quarry  company  did  not  answer  the  complainant's  bill, 
but  no  decree  has  been  entered  against  it.  Upon  the  whole  case 
I  am  of  the  opinion  that  the  mortgage  is  not  a  valid  lien  upon 
any  of  the  property,  and  that  it  must  be  delivered  up  to  be 
canceled. 

The  assignment  from  Bloss  to  the  complainant  contains  a 
guaranty  by  Bloss  that  the  amount  of  $3,942.74  is  due  and  owing 
upon  the  mortgage,  in  these  words :  '<  I  do  hereby  covenant  and 
agree  to  and  with  the  party  of  the  second  part  that  there  is  now 
due,"  etc.,  "  and  I  do  for  myself,  my  heirs,  executors,  adminis- 
trators, and  assigns,  guaranty  the  payment  of  the  said  bond  and 
mortgage."  That  guaranty  is  set  out  in  the  bill.  And  in  addi- 
tion to  the  ordinary  prayer  found  in  a  foreclosure  bill,  there  is  a 
prayer  for  further  and  other  relief.  The  prayer  for  foreclosure 
is  in  these  words :  *'  And  that  the  said  defandants,  or  some  one 
of  them,  may  be  decreed  to  pay  to  your  oratrix  the  said  princi- 
pal sums  90  due  to  her  on  the  said  bond  or  obligations  and  deed 
of  mortgage  hereinbefore  mentioned  and  set  forth,  and  all  the 
interest  money  now  due  and  to  grow  duo  thereon,  together  with 
all  your  oratrix's  costs  and  charges  in  this  behalf  sustained,  by  a 
short  day,  to  be  appointed  and  in  default,"  etc.  It  was  con- 
tended by  the  counsel  for  complainant  that  this  prayer  was 
sufficient  to  entitle  the  complainant  to  a  decree  against  Bloss, 
but,  if  the  court  should  be  of  the  opinion  that  it  was  not  suffi- 


WHEiV   mortgagor's    ASSIGNEE    IS    LIABLE    PERSONALLY.     279 

cieut  he  moved  that  he  might  be  permitted  to  amend,  and  such 
a  motion  was  made  in  the  presence  and  with  the  consent  of  the 
counsel  of  Bloss.  I  think  that  it  will  be  in  accordance  with 
good  pleading  that  there  should  be  an  amendment  containing  a 
special  prayer  for  payment  by  Bloss,  and,  alter  such  prayer  has 
been  inserted,  the  complainant  may  have  a  decree  for  payment 
by  Bloss,  and  a  reference  to  a  master  to  ascertain  the  amount 
due  if  the  parties  cannot  agree.  The  defendants  Keynolds  and 
wife  are  entitled  to  costs  against  the  complainant.  There  will 
be  no  costs  in  favor  of  Day  and  wife,  because  they  failed  to  put 
their  release  on  record.  Complainant  is  entitled  to  costs  against 
Bloss,  to  include  the  costs  of  Reynolds  and  wife. 


When   3Iortgagor's  Assignee  is  Liable  Personally  for  Mort- 
gage Debt. 

Equitable  Life  Assurance  Society  of  the  United  States  v.  Bostwick  et  al.,  100 

N.  Y.  628. 

Opinion  of  the  court.  "  This  action  was  brought  to  fore- 
close a  mortgage  executed  to  the  plaintiflf  by  one  W.  P.,  the 
then  owner  of  the  premises.  Through  several  mesne  convey- 
ances the  title  vested  in  Emma  L.  Bostwick,  who  assumed  pay- 
ment of  the  mortgage  as  part  of  the  consideration  for  which  the 
deed  to  her  was  made.  The  debt  was  not  paid,  and  the  plain- 
tiff had  judgment  of  foreclosure,  and  for  the  payment  by  her 
of  such  deticiency  as  might  remain  after  application  of  the  pro- 
ceeds of  the  sale.  The  propriety  of  the  proceedings  so  far  is 
not  questioned,  but  when  Donovan  was  made  a  party  as  having 
an  interest  in  the  premises  subsequent  to  the  mortgage,  and 
Mrs.  Bostwick  and  Josephus,  her  husband,  by  their  answer  to 
the  complaint,  set  out  a  variety  of  circumstances  as  creating  a 
liability  on  the  part  of  Donovan  to  pay  the  delSciency,  and 
asked  that  the  plaintiff  first  exhaust  its  legal  remedy  against 
him.  Donovan  by  answer  put  in  issue  these  allegations,  and  the 
decision  having  been  in  his  favor,  Mrs.  Bostwick  and  her  hus- 
band appeal  therefrom.  We  find  no  ground  on  which  it  can 
succeed.  First.  So  far  as  it  rests  upon  the  assumption  by  the 
appellant's  counsel  that  they  have  paid  the  deficiency  judgment, 
it  mus*^  fail,  for  there  is  neither  finding  by  the  court,  nor  evi- 
dence, however  slight,  that  such  is  the  fact.  Second.  Donovan 
was  properly  made  a  party  to  the  action,  because  he  was  in 
possession  of  the  premises  afi*ected  by  the  foreclosure,  and  if  as 
to  the  appellants  he  had,  by  assuming  payment  of  the  mortgage 
debt,    become    principal    debtor,    it    may  be  that  the  plaintifi" 


280  MORTGAGES. 

would  havo  been  bound  upon  request  to  proceed  against  him  in 
that  capacity  ( Cosgrove  t>.  Tallman,  67  N.  Y.  95).  But  the 
diflaculty  with  the  appellants'  case,  and  a  complete  answer  among 
others  to  this  appeal  is  that  there  is  no  evidence  that  such  rela- 
tions existed.  The  agreement  of  April  1,  1878,  was  between 
Donovan  and  Mr.  Bostwick  ;  under  it  the  latter  was  to  give  a 
title  to  the  mortgaged  premises,  and  the  former  was  to  pay 
therefor  in  part  by  assuming  the  mortgage.  Bostwick  has  con- 
veyed no  title,  nor  had  he  any  to  convey.  It  was  in  Mrs.  Bost- 
wick, and  she  was  not  a  party  to  the  agreement.  The  learned 
counsel  for  the  appellants  contends  that  the  deed  of  April  15, 
1878,  from  Mrs.  Bostwick  and  her  husband,  is  not  valid.  It  is 
therefore  unnecessary  to  consider  that  question.  If,  however,  it 
be  valid,  it  contains  no  assumption  of  the  mortgage  debt  or 
agreement  to  pay  it,  and  such  obligation  cannot  be  implied  from 
the  statement  that  the  conveyance  is  subject  to  the  mortgage 
and  that  the  amount  thereof  forms  *'  part  of  the  consideration, 
and  is  deducted  therefrom."  (Belmont  v.  Coman,  22  N.  Y. 
438.)  Third.  Some  other  points  are  made  by  the  appellants 
that  the  deed  should  be  reformed;  "that  under  any  circum- 
stances Donovan  should  pay  as  much  interest  as  accrued  before 
the  appointment  of  a  receiver.""  I  find  no  allusion  to  either 
matter  in  this  case,  and  whether  the  appellants  have  rights 
which  by  any  mode  of  proceeding  may  be  enforced,  cannot  be 
answered  upon'  the  record  now  before  us.  Upon  that  the  judg- 
ment is  right  and  should  be  affirmed. 


Ijiability  of  Mortgagor  or  Assignee,  Where  He  Assumes  Pay- 
ment of  Mortgage  Debt. 

Union  Mutual  Life  Insurance  Company  v.  Hanford,  143  U.  S.  187. 

Appeal  from  the  circuit  court  of  the  United  States  for  the 
northern  district  of  Illinois.     Affirmed. 

Statement  by  Mr.  Justice  Gray. 

This  was  a  bill  in  equity,  filed  March  30,  1878,  by  the  Union 
Mutual  Life  Insurance  Company,  a  corporation  of  Maine,  against 
Philander  C.  Hanford,  Orrin  P.  Chase,  Frederick  L.  Fake,  and 
Lucy  D.  Fake,  his  wife,  citizens  of  Illinois,  to  foreclose  by  sale 
a  mortgage  of  land  in  Chicago,  and  to  obtain  a  decree  for  any 
balance  due  the  plaintiff  above  the  proceeds  of  the  sale.  Fake 
and  wife  were  defaulted,  and  Hanford  and  Chase  answered. 
The  case  was  heard  upon  a  master's  report,  and  the  evidence 


LIABILITY    OF    MORTGAGOU    Oli    ASSIGNEE.  281 

taken  before  him,  by  which  (so  far  as  is  material  to  be  stated) 
it  appeared  to  bo  as  follows  :  — 

On  September  9,  1870,  Hanford  and  Cha.se  mortgaged  the 
land  to  one  Schuretnan  to  secure  the  payment  of  three  prom- 
issory notes  of  that  date,  signed  by  them,  and  payable  to  his 
order,  one  for  $5,000,  in  one  year,  and  the  second  for  $5,000, 
in  two  years,  each  with  interest  at  the  rate  of  8  per  cent  annually, 
and  the  third  for  $(),000,  in  three  years,  with  interest  at  the  rate 
of  10  per  cent  annually. 

On  January  30,  1871  (the  first  note  having  been  paid),  the 
plaintiff,  through  one  Boone,  its  financial  agent,  bought  the 
mortgage,  and  Schureman  indorsed  the  remaining  notes,  and 
assigned  the  mortgage  to  the  plaintiff. 

On  Se[)tember  9,  1872,  Hanford  and  Chase  conveyed  the  land 
to  Mrs.  Fake  by  deed  of  warranty,  *'  with  the  exception  of  and 
subject  to  "  the  mortgage  describing  it),  "  which  said  mortgage 
or  trust-deed,  and  the  notes  for  which  the  same  is  collateral 
security"  (describing  them),  *' it  is  hereby  expressly  agreed 
shall  be  assumed,  and  paid  by  the  party  of  the  second  part,  and, 
when  paid,  are  to  be  delivered,  fully  canceled,  to  said  Chase  and 
Hanford." 

At  or  about  the  date  of  this  conveyance,  Chase  called  with 
Fake  at  Boone's  oflSce,  and  told  him  that  Hanford  and  Chase 
had  sold  the  property  to  Mrs.  Fake,  and  that  she  was  to  pay  the 
mortgage,  and  Boone,  as  Chase  testified,  "said  *  All  right,'  or 
something  of  that  sort."  At  the  same  interview,  Boone,  as  the 
plaintiff's  agent,  in  consideration  of  $150  paid  him  by  Chase, 
extended  the  $5,000  note  until  September  9,  1874. 

Fake,  as  his  wife's  agent,  afterwards  paid  interest  on  the 
notes  to  Boone,  as  the  plaintiff's  agent;  and  on  January  9,  1875, 
for  the  sum  of  $340,  obtained  from  him,  without  the  knowledge 
of  Hanford  or  Chase,  an  extension  of  the  notes  until  September 
9,  1875. 

The  value  of  the  mortgaged  premises  in  September,  1874,  was 
$18,000  to  $19,000,  and  at  the  date  of  the  master's  report,  in 
April,  1879,  was  $10,000  to  $15,000  only. 

The  principal  defense  relied  on  by  Hanford  and  Chase  was 
that  they  were  discharged  from  personal  liability  on  the  notes  by 
this  extension  of  the  time  of  payment  without  their  consent. 

The  land  was  sold  by  the  master,  under  order  of  the  court, 
for  $12,000,  which  was  insutficient  to  satisfy  the  sums  due  on 
the  mortgage;  and  the  plaintiff,  after  notice  to  Hanford  and 
Chase,  moved  for  a  deficiency  decree  for  a  sum  amounting,  with 
interest,  to  more  than  $5,000.  The  circuit  court  overruled  the 
motion.     27  Fed.  Rep.  588.     The  plaintiff  appealed  to  this  court 


282  MORTGAGES. 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

Few  things  have  been  the  subject  of  more  difference  of  opin- 
ion and  the  conflict  of  decision  than  the  nature  and  extent  of  the 
right  of  a  mortgagee  of  real  estate  against  a  subsequent  grantee, 
who  by  the  terms  of  the  conveyance  to  him  agrees  to  assume 
and  pay  the  mortgage. 

All  agree  that  the  grantee  is  liable  to  the  grantor,  and  that,  as 
between  them,  the  grantee  is  the  principal,  and  the  grantor  is 
the  surety,  for  the  payment  of  the  mortgage  debt.  The  chief 
diversity  of  opinion  has  been  upon  the  question  whether  the 
grantee  does  or  does  not  assume  any  direct  liability  to  the 
mortgagee. 

By  the  settled  law  of  this  court,  the  grantee  is  not  directly 
liable  to  the  mortgagee  at  law  or  in  equity;  and  the  only  remedy 
of  the  mortgagee  against  the  grantee  is  by  bill  in  equity  in  the 
right  of  the  mortgagor  and  grantor,  by  virtue  of  the  right  in 
equity  of  a  creditor  to  avail  himself  of  any  security  which  his 
debtor  holds  from  a  third  person  for  the  payment  of  the  debt. 
Keller  v.  Ashford,  133  U.  S.  610;  10  Sup.  Ct.  Rep.  494;  Wil- 
lard  V.  Wood,  135  U.  S.  309;  10  Sup.  Ct.  Rep.  831.  In  that 
view  of  the  law  there  might  be  difficulties  in  the  way  of  holding 
that  a  person  who  was  under  no  direct  liability  to  the  mortgagee 
was  his  principal  debtor,  and  that  the  only  person  who  was 
directly  liable  to  him  was  chargeable  as  a  surety  only,  and  con- 
sequently that  the  mortgagee,  by  giving  time  to  the  person  not 
directly  and  primarily  liable  to  him,  would  discharge  the  only 
person  who  was  thus  liable.  Shepherd  v.  May,  115  U.  S.  505, 
511;  6  Sup.  Ct.  Rep.  119  ;  Kelleher  v.  Ashford,  113  U.  S.  610, 
625  ;  10  Sup.  Ct.  Rep.  494.  But  the  case  at  bar  does  not 
present  itself  in  that  aspect. 

The  question  whether  the  remedy  of  the  mortgagee  against 
the  grantee  is  at  law  and  in  his  own  right,  or  in  equity  and  in 
the  right  of  the  mortgagor  only,  is,  as  was  adjudged  in  Willard 
V.  Wood,  above  cited,  to  be  determined  by  the  law  of  the  place 
where  the  suit  is  brought.  By  the  law  of  Illinois,  where  the 
present  action  was  brought,  as  by  the  law  of  New  York, 
and  of  some  other  States,  the  mortgagee  may  sue  at  law  a 
grantee  who,  by  the  terms  of  an  absolute  conveyance  from  the 
mortgagor,  assumes  the  payment  of  the  mortgage  debt.  Dean 
V.  Walker,  107  111.  540,  545,  550  ;  Thompson  v.  Dearborn,  Id. 
87,  91  ;  Bay  v.  Williams,  112  111.  91;  Burr  v.  Beers,  24  N.  Y. 
178;  Thorpe  v.  Coal  Co.,  48  N.  Y.  253.  According  to  that  view, 
the  grantee,  as  soon  as  the  mortgagee  knows  of  the  arrange- 
ment, becomes  directly  and  primarily  liable  to  the  mortgagee 


LIABILITY    OF    MORTGAGOR    OR    ASSIGNEE.  283 

for  the  debt  which  the  mortgagor  was  aheady  liable  to  the  lat- 
ter ;  and  the  relation  of  the  grantee  and  the  grantor  towards  the 
mortgagee,  as  well  as  between  themselves,  is  thenceforth  that 
of  principal  and  surety  for  the  payment  of  the  mortgage 
debt.  Where  such  is  held  to  be  the  relation  of  the  parties,  the 
consequence  must  follow  that  any  subsequent  agreement  of  the 
mortgagee  with  the  grantee,  without  the  assent  of  the  grantor, 
extending  the  time  of  payment  of  the  mortgage  debt,  discharges 
the  grantor  from  all  personal  liability  for  that  debt.  Calvo  v. 
Davies,  73  N.  Y.  211 ;  Bank  v.  Estate  of  Waterman,  133  111.  461, 
467;   29  N.  E.  Rep.  503. 

The  case  is  thus  brought  within  the  well-settled  and  familiar 
rule  that  if  a  creditor  by  positive  contract  with  the  principal 
debtor,  and  without  the  consent  of  the  surety,  extends  the  time 
of  payment  by  the  principal  debtor,  he  thereby  discharges  the 
surety  ;  because  the  creditor  by  so  giving  time  to  the  principal, 
puts  it  out  of  the  power  of  the  surety  to  consider  whether  he  will 
have  recourse  to  his  remedy  against  the  principal,  and  because 
the  surety  cannot  have  the  same  remedy  against  the  principal 
as  he  would  have  had  under  the  original  contract;  and  it  is 
for  the  surety  alone  to  judge  whether  his  position  is  altered  for 
the  worse.  1  Spence  Eq.  Jur.  638;  Samuell  v.  Howarth,  3 
Mer.  272;  Miller  v.  Stewart,  9  Wheat.  680,  703.  The  rule 
applies  whenever  the  creditor  gives  time  to  the  principal,  know- 
ing of  the  relation  of  principal  and  surety,  although  he  did  not 
know  of  that  relation  at  the  time  of  the  original  contract  (Ewin 
V.  Lancaster,  6  Best  &  S.  571  ;  Financial  Corp  v.  Overend,  L. 
R.  7  Ch.  App.  142,  and  L.  R.  7  H.  L.  348;  Wheat  v.  Kendall, 
6  N.  H.  504;  Guild  v.  Butler,  127  Mass.  386);  or  even  if  that 
relation  had  been  created  since  that  time  (Oakley  v.  Pasheller, 
4  Clark  &  F.  207,  233;  10  Bligh  N.  S.  548,  590;  Colgrove  v. 
Tallman,  67  N.  Y.  95  ;  Smith  v.  Shelden,  35  Mich.  42). 

In  the  case  at  bar,  the  mortgagee,  immediately  after  the 
absolute  conveyance  by  the  mortgagors,  was  informed  of  and 
assented  to  that  conveyance  and  the  agreement  of  the  grantee  to 
pay  the  mortgage  debt,  and  afterwards  received  interest  on  the 
debt  from  the  grantee;  and  the  subsequent  agreement  by  which 
the  mortgagee,  in  consideration  of  the  payment  of  a  sum  of 
money  by  the  grantee,  extended  the  time  of  payment  of  the 
debt,  was  made  without  the  knowledge  or  assent  of  the  mort- 
gagors. Under  the  law  of  Illinois,  which  governs  this  case,  the 
mortgagors  were  thereby  discharged  from  all  personal  liability 
on  the  notes,  and  the  circuit  court  rightly  refused  to  enter  a 
deficiency  decree  against  them. 

Decree  aflSrmed. 


284  MORTGAGES. 

Effect  of  Oral  Assignment  —  Tender  of  Payment  to  Mortgagee. 

Kennedy  v.  Moore,  91  Iowa,  39;  58  N.  W.  lOGtJ. 

Given,  J.  1.  Plaintiff  asks  to  recover  upon  a  note  and  mort- 
<fa»e  executed  by  defendants  J.  J.  and  Lucy  J.  Mooro  to  George 
W.  Severance,  which  note  is  payable  to  order,  and  which  phiintiff 
alle<»:es  was  orally  transferred  to  him  for  value  by  said  Sever- 
ance, anil  that  he  is  the  owner  thereof.  Defendants  answer, 
admitting  the  execution  of  the  note  and  mortgage,  and  for  want 
of  knowledge  or  information  deny  that  said  note  and  mortgage 
are  the  property  of  the  plaintiff.  In  the  fourth  paragraph  they 
allege  that  they  were  notified  by  Isaac  Struble  that  he,  as  attor- 
ney for  plaintiff,  held  said  note  and  mortgage;  that  there  was 
then  due  thereon  $1,618.70,  and  demanded  payment  thereof; 
that  on  said  day  and  before  the  commencement  of  this  action, 
they  tendered  said  amount  to  said  Struble  *'  and  demanded  of 
him  the  possession  of  said  note  and  mortgage,  and  also  demanded 
of  him  that  he  show  his  authority  to  collect  and  receive  the 
amount  due  thereon,  either  by  producing  an  assignment  of  the 
said  note  and  mortgage  from  the  said  George  W.  Severance,  or 
by  producing  and  delivering  to  these  defendants  a  release  of  said 
mortgage,  duly  executed  by  said  Severance;  "  that  said  Struble 
offered  to  accept  the  money,  and  to  deliver  the  note  and  mort- 
gage, *'  but  refused  to  produce  either  an  assignment  of  the  said 
note  and  mortgage  from  said  Severance  to  said  Kennedy 
or  any  other  person,  or  to  produce  or  deliver  to  these 
defendants  a  release  of  said  mortgage  executed  by  said  Sev- 
erance; and  stated  as  his  reason  for  refusing  to  produce  the 
said  assignment  or  deliver  the  said  release  that  the  said  Sever- 
ance had  refused  to  execute  the  said  papers,  or  either  of  them." 
Defendants  further  allege  in  said  fourth  paragraph  that  prior  to 
said  demand  George  W.  Severance  had  notified  them  that  the 
plaintiff  was  not  entitled  to  said  note  or  mortgage,  or  to  collect 
the  an)Ount  due  thereon  and  that  because  of  said  notice  they 
declined  to  pay  said  note  unless  assigned,  or  a  release  from 
Severance  was  delivered.  In  subsequent  paragraphs  defend- 
ants allege  a  readiness  to  pay  said  sum  of  $1,618.70;  "that, 
as  these  defendants  have  been  informed  and  believe,  the  said 
George  W.  Severance  claims  to  be  the  owner  of  said  note  and 
mortgage,  or  of  some  interest  therein,  and  claims  that  the  plain- 
tiff m  this  action  is  not  entitled,  to  receive  payment  thereof, 
and  the  said  Severance  refuses  to  release  the  said  mortgage  of 
record,  *  *  *  or  to  authorize  any  other  person  to  release 
the  same."     For  the  reasons  stated   in   their  answer,  defend- 


EFFECT   OF    ORAL    ASSIGNMENT.  285 

ants  moved  that  Sevenince  be  made  a  defendant,  which  motion 
was  overruled.  Plaintiff  demurred  to  fourth  i)aragraph 
of  the  answer  "  on  the  ground  that  the  same  does  not 
entitle  the  defendants  to  the  relief  demanded."  This 
demurrer  was  sustained,  and  the  defendants  elected  to 
stand  on  their  answer,  and  refused  to  plead  further,  and 
the  court  ordered  that  defendants  be  granted  a  certificate  for 
appeal  to  the  Supreme  Court  of  Iowa,  and  then  and  there  cer- 
tified to  the  following  questions  of  law  for  the  decision  of  the 
Supreme  Court."  The  first  question  certified  is  whether,  under 
the  facts  as  alleged  in  the  pleadings,  the  motion  to  make  Sever- 
ance a  party  should  have  been  sustained.  The  second  question 
is:  "  Does  the  condition  annexed  to  the  tender  as  pleaded  in  said 
answer  vitiate  the  tender,  and  leave  the  defendants  liable  to 
interest  and  costs  in  this  action,  in  the  manner  as  though  the 
tender  had  not  been  made?  " 

2.  After  defendants'  motion  was  overruled, plaintiff's  demurrer 
sustained,  and  the  certificate  granted,  plaintiff  proceeded  to  prove 
up  his  ca^e  by  introducing  the  note  and  mortgage,  and  calling 
Mr.  Rishel,  whr)  testified  that  they  were  delivered  to  him  by 
Severance,  for  plaintiff,  in  an  adjustment  of  some  indebtedness 
from  Severance  to  Kennedy.  On  cross-examination  he  answered 
that  there  was  never  any  written  assignment  that  he  knew  of. 
Appellee  contends  that  by  this  cross-examination  appellants 
waived  any  error  that  may  have  been  committed  in  the  rulings 
on  the  motion  and  demurrer,  and  therefore  are  not  entitled 
to  be  heard  in  this  court.  After  these  rulings,  the  only  issue 
remaining  was  as  to  plaintiff's  ownership  of  the  note  and  mort- 
gage, and  to  establish  his  ownership  appellee  called  Mr.  Rishel. 
Appellants  did  not  examine  as  to  that  issue,  but  only  as  to  a 
fact  alleged  in  both  the  petition  and  answer,  namely,  that  there 
was  no  written  assignment.  Whether  appellants  would  have 
waived  their  exceptions  by  appearing  and  defending  upon  the 
issue  of  ownership,  we  need  not  determine,  as  it  does  not  appear 
that  they  offered  any  defense  on  that  issue,  but  rest  their  de- 
fense solely  upon  their  tender.  The  ownership  of  the  note  and 
mortgage  did  not  depend  upon  there  being  an  assignment  thereof 
in  writing.  The  claim  is  that,  in  the  absence  of  such  an  assign- 
ment, appellants  were  warranted  in  making  their  tender  upon  the 
conditions  they  did.  We  think  appellants  are  entitled  to  be 
heard  on  the  questions  certified. 

3.  Plaintiff  was  demanding  payment  to  him  of  a  note  paya- 
ble *'  to  the  order  of  George  ^V^  Severance,"  and  secured  by 
mortgage  upon  an  alleged  oral  assignment  thereof.  Defendants 
offered  to  pay  upon  surrender  of    the    note    and  mortgage  if 


286  MORTGAGES. 

assigned  in  writing  by  Sevenmco,  or  on  delivery  of  a  release  of 
the  mortgages  from  Severance.  Tiiis  plaintiff  failed  to  do,  for 
the  reason  that  Severance  refused  "  to  execute  the  said  papers, 
or  cither  of  them."  Severance  had  notified  defendants  that  the 
plaintitr  was  not  entitled  to  said  note  and  mortgage,  or  to  col- 
lect the  amount  due  thereon.  While  it  is  not  directly  stated 
that  Severance  had  any  interest  in  the  note  and  mort- 
eaije,  the  alle<!:ations  can  lead  to  no  other  conclusion.  The 
note  was  payable  to  his  order.  Ho  had  made  no  written  assign- 
ment. There  is  no  pretense  of  any  other  assignment  than  the 
oral  assignment  from  Severance  to  plaintiff,  and  Severance  was 
denying  plaintiff's  right  to  the  note  and  mortgage.  Surely  there 
is  a  plain  contention  between  Severance  and  plaintiff  as  to  the 
ownership  of  the  note  that  the  defendants  had  a  right  to  have 
determined.  That  Severance  was  claiming  some  interest  in  the 
note  and  mortgage  is  as  apparent  from  the  pleadings  as  if  it  had 
been  stated  in  the  most  direct  words.  We  think  the  motion  of 
the  defendants  to  moke  George  W.  Severance  a  defendant  should 
have  been  sustained. 

4.  The  fourth  paragraph  of  the  answer  alleges  a  tender,  and 
the  question  raised  by  the  demurrer  is  as  to  sufficiency  of  that  ten- 
der as  alleged.  The  law  is  that,  to  be  valid,  a  tender  must  be 
without  other  condition  than  that  the  party  to  whom  it  is  made 
will  do  that  which  it  is  his  legal  obligation  to  do.  Siiunders  v. 
Frost,  5  Pick.  250;  Loughborough  v.  McNevin  (Cal.),  14  Pac. 
370;  15  Pac.  773  ;  Cass  v.  Higent)otam,  100  N.  Y.  248  ;  3  N.  E. 
189.  In  Johnson  v.  Cranage,  45  Mich.  14;  7  N.  W.  188,  the 
court  says:  "  A  tender  may  very  i)ro[)erly  be  coupled  with  con- 
ditions such  as  the  l)arty  has  the  right  to  make  and  is  entitled  to 
as  resulting  from  a  payment  or  tender  legally  made."  The  con- 
ditions upon  which  the  tender  was  made  were  that  Mr.  Struble 
would  deliver  the  note  and  mortgage  to  the  defendants,  and  that 
he  either  produce  an  assignment  thereof  from  George  W.  Sev- 
erance, or  produce  and  deliver  to  the  defendants  a  release  of  saitl 
mortgage,  duly  executed  by  said  Severance.  True,  it  is  said  that 
defendants  demanded  that  Mr.  Struble  show  his  authority  to  col- 
lect and  receive  the  money,  not  generally,  but  by  producing  the 
assignment  or  release  from  Mr.  Severance.  This  brings  us  to 
inquire  whether  these  were  conditions  which  the  plaintiff  was 
under  legal  obligation  to  perform,  and  to  which  defendants  were 
entitled  on  making  payment  or  tender.  There  is  no  question  as 
to  their  right  to  a  surrender  of  the  note  and  mortgage,  and  the 
allegation  is  that  Mr.  Strublo  offered  to  accei)t  the  money  and 
deliver  the  note  and  mortgage,  but  refused  to  produce  an  assign- 
ment or  release  from  Severance.     This  note  was  payable  to  the 


PAYMENT    BINDING    ON    ASSIGNEE.  287 

order  of  George  W.  Severance.  He  h;id  given  no  order  in  writ- 
ing, by  assignment  or  otherwise,  for  its  payment  to  the 
))l:iintifr,  but,  on  the  contrary,  had  notified  the  defendants 
that  the  phiintitt'  was  not  entitled  to  said  note  and  mortgage,  or 
to  collect  the  same.  Until  satisfied  of  record,  the  mortgage 
would  stand  as  a  cloud  upon  defendants'  title  to  their  land, 
even  though  the  note  were  fully  paid.  It  seems  to  us 
that,  under  these  circumstances,  the  plaintiff  was  under  legal 
obligation  to  procure  either  an  assignment  of  the  note  or  a 
release  of  the  mortgage  from  Mr.  Severance ;  and  that  defend- 
ants had  the  right  to  make  tiieir  offer  of  payment  upon  condi- 
tion that  plaintiff  show  his  right  to  receive  the  same  by  pro- 
ducing an  assignment  or  release.  Surely,  the  defendants 
should  not  be  required  to  assume  the  hazards  of  disputes 
between  the  plaintiff  and  Severance,  nor  to  assume  that  either 
of  them  would  release  the  mortgage  after  payment.  It  is 
argued  that  defendants  must  rely  on  section  4563,  McClain's 
Code,  which  requires  that  upon  payment  the  mortgagee,  or 
those  legally  acting  for  him,  must  satisfy  the  mortgage  of 
record,  under  a  penalty  of  $25.  It  may  be  true,  as  contended, 
on  the  authority  of  Low  v.  Fox,  56  Iowa,  221  ;  9  N.  W.  131, 
that  Severance  alone  could  release  this  mortofaffe.  All  the 
more  reason,  we  think,  why  defendants  had  a  right  to  demand 
as  a  condition  of  payment  his  assignment  or  release.  They 
were  not  bound  to  take  the  hazards  of  any  disputes  between 
Severance  and  the  plaintiff  as  to  plaintiff's  right  to  receive 
payment.  We  think  the  demurrer  should  have  been  overruled. 
5.  Appellee  questions  the  sufficiency  of  the  assignment  of 
errors.  We  have  examined  them  in  the  light  of  the  authorities 
cited,  and  conclude  that  they  are  suflSciently  specific.  Our 
conclusions  are  that  the  first  question  certified  must  be  answered 
in  the  aflSrmative,  and  the  second  in  the  negative.     Reversed. 


Payment  to  Mortgagee  When  Binding  on  Assignee. 

Mulcahy  v.  Fenwick,  161  Mass.  164;  36  N.  E.  689. 

Report  from  supreme  judicial  court,  Suffolk  County;  J.  B. 
Richardson,  Judge. 

Bill  by  Bridget  Mulcahy  and  another  against  Joseph  B.  Fen- 
wick and  others  to  compel  defendants  to  discharge  a  mortgage 
and  to  surrender  a  note.  The  case  was  reported  to  the  supreme 
court.     Decree  for  defendants. 

At  the  hearing  in  the  superior  court,  Richardson,  J.,  found  the 
folh)wing  facts:    "  In  or  about  the  year  1885  the  plaintiff,  Mrs. 


288  MOUTOAOES. 

Mulcahy,  became  the  owner,  in  her  own  right,  of  a  parco'.  of 
land,  with  the  liuildmgs  tlieroou,  siluiiti-d  in  the  city  of  Chelsea. 
Her  hu.-*baud,  Daniel  Mulcahy,  transacted  all  the  business  re- 
lating to  the  said  estate  for  her;  she  signing  all  deeds  and  docu- 
ments, whenever  it  was  necessary  (not  l)eing  able  to  read  or 
write),  by  making  her  mark.  About  December  1,  1888,  when 
the  phiinlitis  were  erecting  a  house  on  said  land,  one  Eben 
Hutchinson,  an  attorney  at  law,  and  judge  of  the  police  court 
of  Chelsea,  went  upon  said  premises,  and  asked  Mr.  Mulcahy 
if  he  desired  to  borrow  some  money.  Mr.  Mulcahy  replied 
that  he  might  want  some  money  in  a  few  days.  Shortly  after, 
Mulcahy  called  at  Hutchinson's  oflSce,  in  Chelsea;  and  the 
result  of  the  interview  between  Mulcahy  and  Hutchinson  was 
that  Hutchinson  agreed  to  loan  the  plaintiffs  $1,100  in  money, 
and  also  to  assume  and  pay  a  mortgage  of  $1,700  held  by 
Messrs.  Slade  &  Griffin  upon  said  estate  of  the  plaintiffs,  and 
Mulcahy  agreed  tliat  the  plaintiffs  w^ould  give  Hutchinson  a  note 
for  the  $2,800  secured  by  a  mortgage  on  said  estate.  In  pur- 
suance of  this  agreement,  on  or  near  the  7th  day  of  December, 
1888,  the  said  Hutchinson  loaned  the  plaintitfs,  in  cash,  the  sum 
of  $1,100,  paying  the  same  in  several  sums  at  ditl'erent  times, 
the  tirst  sum  being  })aid  on  December  7,  1888,  and  later  the  said 
Hutchinson  paid  and  dischai-ged  the  said  Slade  &,  Giiffin  mort- 
gage, of  $1,700;  and  on  the  7th  day  of  December,  1888,  the 
plaintitfs  signed  a  note  for  $2,800,  and  executed  a  mortgage 
upon  the  aforesaid  land  in  Chelsea  for  a  like  sum,  as  security 
for  said  note,  and  gave  the  note  and  mortgage  to  said 
Hutchinson.  Said  note  and  mortgage  weie  made  to  run  from 
the  plaintiffs  to  one  Henry  Hunt  Letteney.  Said  Henry 
Hunt  Letteney  executed  an  assiiinment  of  said  mortgage  and 
note  on  December  8,  1886,  to  Joseph  B.  Fenwick,  one  of  the 
defendants.  The  terms  and  conditions  u[)oii  which  the  money 
was  loaned  were  fixed  by  said  Hutchinson  and  Mulcahy,  and 
without  the  knowledge  of  said  Fenwick,  excepting  that  said 
Fenwick  hadasked  said  Hutchinson  to  get  a  mortgage  of  $2,800 
for  him  and  had  been  told  by  said  Hutchinson  that  he  had  a 
mortgage,  or  would  get  one  for  him.  The  note  and  mortgage 
deed  were  drawn  by  said  Hutchin-on,  or  one  of  his  clerks  at  his 
office,  and  were  executed  by  the  plaintiffs  at  his  office,  and  left 
there  with  Hutchinson;  and  the  mortgage  was  taken  to  the  Suf- 
folk registry  of  deeds  by  said  Hutchinson  and  recorded  on  De- 
cember 8,  1888,  and  the  assignment  was  taken  to  said  registry 
by  said  Hutchinson  and  recordeil  on  December  13,  1888.  Said 
mortgage  and  assignment  were  taken  from  the  registry  by  said 
Hutchinson  about  ten  days  after  each  had  been  left  there  to  be 


PATMEXT    BINDING    OS    ASSIGNEE.  289 

recorded,  and  the  mortage  and  assignment,  together  with  the 
note  and  insurance  policy,  were  delivered  by  said  Hutchinson  to 
Fenwick  at  Fenwick's  house,  in  Chelsea.     The  sum  of  $2,800 
was  given   by  said  Fenwick  to  said  Hutchinson  at  about  that 
time.     Eleven  hundred   dollars,  which  was  the  money  part  of 
the  consideration,  was  paid  to  eiid  Mulcahy  by  said  Hutchinson, 
in  three  different  sums,  at  different  times;  the  first  sum  being 
paid  on   December  7,  1888,  at  Hutchinson's  office.     Since  the 
delivery  of  said  mortgage,  note,  assignment,  and  policy  to  said 
Fenwick  by  said  Hutchinson,  as  aforesaid,  the  same  have  ever 
since  remained  in  the  possession  of  the  said  Fenwick,  either  at 
his  home  or  in  his  safe-deposit  vault  ;  and  neither  of  said  papers, 
since  they  were  delivered   by  said  Hutchinson  to  said  Fenwick, 
have  ever  been  in  the  posses-ion  ot"  said  Hutchinson,  but  have 
remained  exclusively  in  the  possession  of  said  Fenwick.     Hutch- 
inson was  the  onl}'  party  the  plaintiffs  believed  to  have  any  in- 
terest in  the  note.     The  plaintiffs  never  had  any  talk  with  said 
Leiteney  until  after  the  said  Hutchinson  had  absconded,  and  the 
plaintiffs  never  had  any  conversation  with  said  Fenwick   until 
about  July,  1892,  when  said  Fenwick,  for  the  first  time,  stated 
to  them  that  he  held  a  mortgage  upon  their  said  premises.     Said 
Mulcahy  paid  to  Hutchinson  the  interest  on  said  note  of  $2,800 
from  time  to  tioje,  and  also  the  principal  sum  in  installments, 
and   received    therefor   receipts,    copies   of    which   are   hereto 
attached,  marked  '  A,'  *  B,'  ♦  C,'  «  D,'  '  E,'  «  F,'  and  *  G,'  the 
signatures  to  the  said  receipts  being  in  the  handwriting  of  said 
Eben  Hutchinson;   there  being  included  in  one  or  two  of  said 
receipts  interest  on  a  further  loan  of  $100,  made  in  January, 
1889,  by  said  Hutchinson  to  the  plaintiffs,  which  loan  the  plain- 
tiffs afterwards  paid  to  said  Hutchiuson  in  full;   the  said  $100 
loan,  however,  being  in  no  way  connected  with  the  said  note 
and  mortgage  for  $2,800.     At  the  times  when  Mulcahy  made 
said  payments  to   Hutchinson,  he  saw  Hutchinson   have  a  note 
with  the  figures  '  $2,800'  in  the  left-hand  comer,  and  his  signa- 
ture at  the  bottom;   and  said  Hutchinson  appeared  to  write  on 
the  back  of  the  note,  same  time  saying  to  Mulcahy:  '  You  don't 
need  a  receipt.     This  indorsement  will  answer.'     Said  Fenwick 
received  from    said  Hutchinson    the    sums   of   money  indorsed 
on  the  back  of  said  $2,800  note  held  by  Fenwick,  and  received 
no    more    moneys    from  any  source    on    account  of   said  note. 
The  indorsements    on  the  back  of   this  note  held  by  Fenwick 
are    all   in    his    handwriting.     These    indorsements  of   interest 
were     made     by     said      Fenwick     on     or     about     the     dates 
when     the     various     sums     of    interest     were     paid     to    him 
by    said    Hutchinson.     If    the    statements    of    said    Hutchin- 

19 


290  MORTGAGES. 

son  to  Fenwick  are  admissible  in  evidence,  it  is  shown  and  ad- 
mitted that  ho  stated  to  said  Fenwick,  at  the  time  that  he  made 
the  iirst  payment  of  interest,  that  he  (Hutchinson)  was  having 
other  money  transactions  with  said  Mulcahy,  that  said  MuU:ahy 
was  indebted  to  him  on  other  matters,  and  that  he  (Hutchinson) 
would  see  that  said  Fenwick  received  his  interest.  No  talk  ever 
took  place  between  said  Fenwick  and  said  Hutchinson  in  re- 
gard to  payments  of  any  part  of  the  principal.  Mulcahy  [)aid 
the  principal,  in  various  installments,  to  said  Hutchinson,  as 
appears  from  the  said  receipts;  the  last  being  March,  1891. 
Said  Henry  Hunt  Letteney,  to  whom  the  mortgage  and  note 
were  made  payable,  was  a  clerk  or  scrivener  in  tlie  said  Hutch- 
inson's office,  and  had  no  pecuniary  interest  whatever  in  said 
note  and  mortgage,  and  no  part  of  the  consideration  came  from 
him  or  through  his  hands;  and  he  simply  allowed  his  name  to 
be  used  at  said  Hutchinson's  request,  as  he  was  accustomed  to 
do.  It  did  not  appear  that  said  Fenwick  ever  had  any  conver- 
sation with  said  Hutchinson  relating  to  the  use  of  said  Let- 
teney's  name,  or  in  fact  knew  why  it  was  so  used,  or  made  any 
inquiries  of  said  Hutchinson  in  regard  to  the  name.  Said  Fen- 
wick never,  in  express  terms,  authorized  said  Letteney  or  said 
Hutchinson  to  collect  any  part  of  the  principal;  and  the  said 
Mulcahy  never  had  any  conversation  with  the  said  Hutchin- 
son or  the  said  Letteney  as  to  why  the  mortgage  was  made 
to  run  to  said  Letteney,  instead  of  to  said  Hutchinson.  In 
July,  1892,  Joseph  B.  Fenwick,  the  defendant,  called  at 
the  plaintiff's  house,  and  informed  them  that  he  held  a  mort- 
gage for  $2,800  on  their  estate  aforesaid.  That  was  the 
first  notice  that  the  plaintiffs  had  that  Fenwick,  or  any  one 
except  Hutchinson  ever  had  an  interest  in  the  not6  and  mort- 
gage, although  Fenwick  and  Mulcahy  both  lived  in  Chelsea, 
and  Fenwick  knew  where  Mulcahy  lived.  It  was  the  first 
actual  notice  that  the  plaintiffs  had  received  that  said  mortgage 
had  been  assigned.  When  said  note  for  $2,800  was  delivered  to 
Fenwick  by  Hutchinson,  it  w:is  not  indorsed,  and  remained  unin- 
dorsed until  after  its  maturity,  to  wit,  in  January,  1892,  the  de- 
fendant Joseph  B.  Fenwick  sup))osing  that  he  had  a  good  title  to 
the  note.  After  the  maturity  of  the  note,  he  took  it  to  said  Let- 
teney, and  requested  him  to  indorse  it,  which  he  did,  writing  upon 
the  back  of  the  note  these  words:  '  Pay  to  Joseph  Fenwick  with- 
out recourse.  Henry  Hunt  Letteney.'  Said  Letteney  made  no 
objection  to  indorsing  said  note, and  did  so  without  consideration, 
when  requested  by  said  Fenwick  to  do  so.  Said  Letteney  tes- 
tified, and  I  find,  that  the  reason  why  he  did  not  indorse  said 
note  before  its  maturity  was  because  he  was  not  requested  by 


PAYMENT   BINDING   ON   ASSIGNEE.  291 

said  Hutchinson  to  do  so.  S;iid  Fenwick  got  the  indorsement  of 
said  Letteney  at  the  suggestion  of  a  business  acquaintance.  Both 
Fenwick  and  Mulcahy  had  had  separ  ite  previous  dealings  v;ith 
said  Hutchinson  rehitiug  to  real  estate  on  several  occasions.  On 
two  such  occasions,  Hutcliinson  phiccd  $1,500  for  Fenwick  on  a 
mortgage  of  real  estate,  and  in  so  doing  received,  from  Fenvvicic, 
Fenwick's  check  for  $1,500,  payable  to  Hutchinson.  On  Octo- 
ber I,  1888,Fenvvick  conveyed  real  estate  to  one  Elizabeth  B.  Cut- 
ter, through  Letteney,  who  acted  simply  as  conduit  of  title,  and 
as  Hutchinson's  clerk,  and  at  Hutchinson's  request,  Hutchinson 
being  the  agent  or  adviser  or  counsel  of  Fenwick  for  the  pur- 
pose of  completing  the  transaction,  hut  none  of  these  trans- 
actions had  anything  to  do  with  the  subject  in  controversy.  The 
assignment  from  Letteney  to  Fenwick  was  taken  by  Fenwick 
without  question  ;  the  said  Fenwick  having  confidence  in  said 
Hutchinson  on  account  of  his  official  and  professional  standing, 
and  his  high  reputation  in  the  community.  The  said  assign- 
ment was  diawn  in  Hutchinson's  oflSce,  executed  there  by  said 
Letteney  at  Hutchinson's  request,  and  in  Hutchinson's  presence. 
The  defendant,  Joseph  B.  Fenwick,  however,  was  not  present 
when  said  Letteney  executed  said  assignment,  and  never  had 
any  conversation  concerning  the  same  until  he  asked  him  (Let- 
teney) to  indorse  the  note,  in  January,  1892,  as  aforesaid. 
Letteney  had  no  interest  in  said  assignment,  received  no  part  of 
the  consideration  for  it,  and  none  of  it  passed  through  his 
hands;  Letteney  simply  acting  as  clerk  or  scrivener  for  said 
Hutchinson,  at  Hutchinson's  request.  Said  Mulcahy  gave  said 
mortgage  to  Letteney  because  Hutchinson  presented  it  to  him 
for  bis  signature :  and  Fenwick  received  the  mortsao-e  from 
Letteney  because  it  was  assigned  to  him,  and  without  inquiry. 
The  defendant,  Mrs.  Fenwick,  took  an  assignment  from  her  hus- 
band, Joseph  B.  Fenwick,  the  defendant,  of  the  mortgage  and 
note,  in  the  usual  form,  about  August  1,  1892,  without  considera- 
tion, and  through  a  third  party  named  McVey.  About  August 
1,  1892,  the  plaintiffs  requested  the  defendants  to  execute  a 
discharge  of  the  mortgage,  and  to  surrender  the  note,  and  they  re- 
fused to  do  so.  Upon  the  above  facts  and  evidence,  I  reserve  the 
case  for  the  consideration  ot  the  supreme  judicial  court,  in  banc." 
Barker,  J.  The  case  is  reserved  by  a  justice  of  the  superior 
court  ui)()n  facts  found  and  reported  by  him,  but  without  any 
determination  or  adjudication  of  the  rights  of  the  parties.  The 
question  whether  Hutchinson  was  the  agent  of  Fenwick,  and  as 
such  agent  received  and  collected  from  the  plaintiffs  the  prin- 
cipal and  interest  of  the  mortgage,  is  one  raised  by  the  pleadings, 
and  upon    it  the    plaintiff  has  the  burden  of  proof.     The  facts 


292  MORTGAGES. 

reported  are  as  consistent  with  the  theory  that,  in  making  the 
payments  which  he  made  to  Fenwiek,  Hutchinson  was  actiiii^for 
the  i)hiintiffs  or  for  himself  alone,  as  that  he  was  an  agent  of 
Fenwiek.  The  phiiutilfs  must  therefore  l)e  hehi  to  have  failed  to 
prove  that  the  payments  to  Hutchinson  were  in  effect  payments 
to  Fenwiek.  Upon  the  facts  reported,  the  plaintiffs  must  be 
held  to  have  made  the  payments  to  Hutchinson  at  their  own 
risk.  They  had  given  a  note  and  mortgage  to  one  Letteuey, 
who  was  a  clerk  in  Hutchinson's  office,  and  they  assumed  that 
Hutchinson  was  the  real  party  in  interest,  and  made  their  pay- 
ments to  him  accordingly.  The  note  was  payable  to  Letteney 
or  order  in  three  years  from  its  date,  and  on  the  day  after  its 
date  the  note  and  mortgage  were  sold  for  value  to  Fenwiek, 
and  delivered  to  him,  and  thereafter  kept  in  his  possession. 
The  assignment  of  the  mortgage  to  him  purported  also  to  assign, 
transfer,  and  set  over  to  him  the  note  and  claim  thereby  secured  ; 
but  the  note  was  not  indorsed  by  Lettene}'  until  January,  1892, 
after  maturity.  The  payments  of  principal  were  made  to  Hutch- 
inson on  June  19,  1890,  November  7,  1890,  and  March  17,  1891. 
The  plaintiffs  had  no  actual  notice  of  Fenwick's  ownership  of 
the  note  and  mortgage,  and  he  gave  them  no  notice  that  he  was 
in  any  way  interested  in  the  matter.  As  Hutchinson  was  not 
the  payee  of  the  note,  he  had  no  apparent  right  to  receive  pay- 
ment upon  it;  and,  in  paying  to  him,  the  plaintiffs  acted  at  their 
own  risk,  and  must  bear  the  loss.  If  the  note  had  been  non- 
negotiable,  instead  of  negotiable,  and  not  indorsed  by  the  payee, 
the  result  must  have  been  the  same.  The  plaintiffs  undertook, 
by  the  terms  of  the  mortgage,  to  pay  the  debt  to  Letteney  "  or 
his  executors,  administrators,  or  assigns,"  and,  by  the  note,  to 
pay  it  to  Letteney  "or  order;"  and  they  have  voluntarily 
chosen  to  pay  to  Hutchinson,  w'ho  had  no  right,  either  from 
Letteney  or  the  real  owner,  to  receive  payment.  They  are  in 
the  position  neither  of  the  maker  of  a  negotiable  note  who  has 
paid  it  in  due  course  of  business  to  a  holder  who  produced  it  in 
support  of  his  authority  to  receive  payment,  nor  of  a  mortgagor 
who  has  paid  to  his  mortgagee,  having  no  knowledge  that  he  has 
parted  with  his  mortgage. 

The  plaintiffs  contend  that  Letteney  could  not  maintain  an 
action  against  them  upon  the  note,  because  it  was  not  delivered 
to  him,  and  he  paid  no  consideration  for  it ;  but  the  facts  re- 
ported show  that  full  consideration  moved  to  the  plaintiffs  for 
the  note,  and  that  they  delivered  both  note  and  mortgage  as 
operative  instruments.  The  written  assignment  made  Fenwiek 
the  owner  of  the  note,  although  it  was  not  indorsed,  and  pay- 
ment to  a  stranger  did  not  affect  his  rights. 


ASSIGNMENT  BEFORE  MATURITY  AND  AFTER  PAYMENT.        293 

The  plaintiffs  also  contend  that  Fenwick  was  negligent  in  not 
giving  the  plaintiff  notice  of  the  assignment  before  the  maturity 
of  the  note,  and  that  he  should  therefore  bear  the  loss.  But  the 
law  does  not  impute  negligence  to  the  assignee  of  a  mortgage 
because  he  does  not  notify  the  mortgagor  that  he  has  taken  an 
as.^ignnient,  or  because  he  receives  interest  from  a  third  person, 
who  offers  to  see  that  he  receives  his  interest,  or  because  he  does 
not  demand  payment  at  the  maturity  of  the  mortgage.  Fenwick 
owed  no  duty  to  plaintiffs  in  this  respect,  and  none  of  his 
acts  stated  in  the  report  required  the  inference  that  he  was  at 
fault  with  reference  to  the  pUiintiffs.  The  result  is  that  the 
plaintiffs  have  shown  no  right  to  have  the  note  and  mortgage  can- 
celed, and  their  bill  should  be  dismissed,  without  prejudice  to 
their  right  to  redeem,  on  paying  the  principal  of  the  mortgage, 
with  interest,  from  June  7,  1892  ;  and  a  decree  to  that  effect  is 
to  be  entered  in  the  superior  court.     So  ordered. 


Assignment  of  3Iortgaj?c  and  Note  before  Maturity  and  after 

Payment. 

Watsou  V.  Wyman,  151  Mass.  9G;  36  N,  E.  692. 

Holmes,  J.  This  is  a  bill  in  equity  for  the  cancellation  of  a 
mortgage,  but  containing  an  offer  to  pay  any  sum  that  may  be 
found  due  upon  it.  The  defendant  Davis  took  an  indorsement  of 
the  note  and  an  assignment  of  the  mortgage,  for  value,  before 
maturity,  and  without  notice.  Before  he  did  so  the  mortgagor 
had  given  the  mortgagee  a  second  mortgage  for  a  sum  including 
that  due  on  the  first  mortgage,  and  in  satisfaction  of  it,  but  had 
left  the  first  mortgage  in  the  mortgagee's  hands.  On  the  same 
dav  the  plaintiff  bought  the  second  mortgage. 

Paynient  of  the  mortgage  note  on  the  day  when  it  falls  due  is 
performance  of  the  j)roinise,  and  very  possibly  would  discharge 
the  note,  even  as  against  one  who  took  it  for  value  and  without 
notice  later  on  the  same  day;  but  payment  before  the  day,  or  a 
satisfaction  like  that  in  the  previous  case,  is  a  defense  which 
binds  only  the  party  receiving  })ayment  and  those  who  stand  in 
his  shoes.  Bmbridge  v.  Manners,  3  Camp.  193  194;  Morley  v. 
Culverwell,  8  Mees.  &  W.  174,  181,  182  ;  Kernohan  v.  Durham, 
48  Ohio  St,  1,  7;  26  N.  E.  982  ;  Head  v.  Cole,  53  Ark.  523,  524  ; 
14  S.  W.  898;  Palmer  v.  Marshall,  60  111.  289,  293.  See 
Wheeler  v.  Guild,  20  Pick.  545,  552,  553,  555. 

It  commonly  is  assumed  that  the  mortgage  follows  the  note, 
and  that,  if   the  holder  can  recover  on  the  note,  he  may  avail 


294  MORTGAGES. 

himself  of  the  mortojaoje.  Taylor  v.  Fiigc,  6  Allen,  86  ;  Carpen- 
ter V.  Longan,  1(5  Wall.  271;  1  Jones  Mortg  (4th  Ed.),  §§  834- 
840.  We  are  of  opinion  that  this  is  the  law  where  the  note  has 
been  paid  in  full  in  advance.  As  is  pointed  out  in  Morley  v* 
Culverwell,  ubi  siqjra,  payment  before  the  day  is  not  performance 
of  the  contract,  and  it  follows,  notwithstanding  the  language 
often  u>ed,  that  in  a  strict  sen.so  it  does  not  satisfy  the  condition 
of  the  mortgage.  If  we  are  right  in  our  concession  as  to  tlie 
effect  of  a  payment  on  the  day,  we  have  here  the  technical  reason 
for  the  different  effect  of  an  earlier  payment.  The  note  still 
stands  unperformed,  and  therefore  secured,  subject  only  to  a  per- 
sonal defense,  as  it  is  happily  called  by  Mr.  Ames.  2  Ames  Bills 
&  N.  811.  But  the  very  meaning  of  a  personal  defense  is  that  it 
does  not  accompany  the  note  into  all  hands,  but  only  into  those 
which  are  in  no  better  position  than  the  person  against  whom  it 
has  accrued.  Like  fraud  of  duress  by  threats,  it  leaves  the  legal 
transaction  still  in  full  force,  and  only  furnishes  a  reason  why  a 
particular  person  should  not  be  allowed  to  insist  upon  it.  It 
"  all  proceeds  upon  an  argumentum  ad  Jiomineni.  It  is  saying, 
*  You  have  the  title,  but  you  shall  not  be  heard  in  a  court  of 
justice  to  enforce  it  against  good  f;iith  and  conscience.'  "  Eyre, 
C.  J.,  in  Collins  v.  Martin,  1  Bos.  &  P.  648,  651;  cited  by  Shaw, 
C.  J.,  in  W^heeler  v.  Guild,  20  Pick.  535,  552. 

Another  argument  drawn  from  the  registry  laws  deserves  con- 
sideration. A  mortgage  cannot  be  extinguished  more  effect- 
ually than  by  a  release,  yet  we  presume  that  it  hardly  would  be 
argued  that  an  unrecoi-ded  release  would  be  valid  as  against  a 
purchaser  of  the  mortgage  before  maturity  and  without  notice. 
As  was  said  in  a  case  wliich  settled  the  law  in  Massachusetts; 
"  A  prior,  unrecorded  deed  has  no  effect  except  as  between 
the  parties  to  it,  and  others  having  notice  of  it.  *  *  * 
It  is  the  policy  of  our  laws  that  a  purchaser  of  land,  by 
examining  the  registry  of  deeds,  may  ascertain  the  title  of  his 
grantor.  If  there  is  no  record  deed,  he  has  the  right  to  assume 
that  the  record  title  is  the  true  title.  The  law  has  established 
the  rule  for  the  protection  ot  creditors  and  purchasers  that  an 
unrecorded  deed,  if  unknown  to  them,  is  as  to  them  a  mere  nul- 
lity." Dow  V.  Whitney,  147  Mass.  1,  6;  16  N.  E.  722.  It 
might  be  thought  that  the  same  considerations  ai)ply  to  a  quasi 
discharge  by  payment  of  the  whole  amount  in  advance.  The 
mortgagor  mav  have  an  entry  made  on  the  margin  of  the  record 
of  the  mortgage.  Pub.  St.,  c.  120,  §§  24,  25.  When  no  such 
entry  is  made,  and  the  registry  contains  no  notice  of  payment 
of  any  kind,  it  would  seem  that  one  to  whom  the  mortgage  pro- 
duces the  note,  not  yet  due,  and  the  mortgage,  for  sale,  has  the 


DEFECTIVE    FORECLOSURE    AND    SALE.  295 

right  to  assume  that  the  record  title  is  the  true  title  that  he 
would  have  had  in  the  case  of  an  unrecorded  release.  If  the 
note  were  overdue,  that  would  be  notice,  or  would  put  the  pur- 
chaser in  the  position  of  one  having  actual  notice,  and  therefore 
in  that  case  the  registry  laws  would  not  help  him. 

In  Grover  v.  Flye,  5  Allen,  543,  the  demandant  claimed  title 
under  a  sale  of  an  equity  of  redemption  on  execution.  In  fact 
the  mortgage  had  been  paid  in  full  before  it  was  due,  but  the 
record  did  not  disclose  the  i)ayment,  and  neither  the  officer  nor 
the  demandant  had  notice  of  it.  The  court  held  that  the  rule 
was  the  same  that  it  would  have  been  between  the  original  par- 
ties. In  such  a  case  the  purchaser,  of  course,  does  not  claim  as 
indorser  or  holder  of  the  mortgage  note.  We  accept  the 
authority  of  the  decision  so  far  as  it  goes.  But  if  it  is  not  to  be 
distinguished  satisfactorily  from  one  like  the  present,  so  far  as 
the  argument  from  the  registry  laws  is  concerned,  it  has  no  bear- 
ing on  the  considerations  first  stated,  and  those  are  sufficient  to 
dispose  of  the  case.  It  follows  that  the  decree  sustaining  the 
mortgage  in  the  hands  of  the  defendant  Davis,  and  limiting  the 
plaintift' to  a  right  to  redeem,  was  correct. 

Decree  affirmed. 


Defective  Foreclosure    and    Sale    Operates  as  an  Equitable 
Assignment  of    tlie   Mortgage. 

Lanier  v.  Mcintosh,  117  Mo.  508;  23  S.  W.  787. 

Macfarlane,  J.  The  suit  is  ejectment  in  the  usual  form  to 
recover  a  parcel  of  land  22  rods  6  feet  long  by  15  rods  7  feet 
wide,  in  McDonald  County.  The  answer  admitted  the  posses- 
sion of  Mcintosh  as  tenant  of  his  codefendant  J.  D.  Shields,  but 
denied  all  other  allegations.  It  also  set  up  the  following  special 
defense  :  "  Defendants,  for  further  answer,  say  and  aver  that  at 
one  time  in  the  year  1886  defendant  Shields  gave  to  one  John 
A.  Kuukle  a  note  for  the  sum  of  $270.00,  to  bear  interest  at  the 
rate  of  ten  per  cent  per  annum,  to  secure  which  he  executed  a 
mortgage  upon  the  property  sued  for  herein  to  the  said  Kunkle, 
but  the  same  has  been  long  paid  and  satisfied,  so  no  ground  of 
action  could  exist  on  that  account  against  him  ;  notwithstand- 
ing which  defendants  are  advised  and  aver  that  plaintiff 
pretends  to  make  some  claim  of  right  to  the  possession  of 
the  land  as  a  pretended  assignee  of  the  said  mortgage 
after  condition  broken.  Defendant  Shields,  while  protesting 
that  the  said  mortgage  was  long  ago  satisfied,  comes  and  offers 
to    pay   into    the    court,  for  the   benefit  of  the  lawful  owner  of 


296  MORTGAGES. 

the  said  mortgage  debt,  all  and  every  sura  and  amount  which  may 
appear  from  the  evidence  in  this  ease  to  be  and  remain  uni)aid 
thereon,  if  any,  if  it  be  found  that  tlie  phiintiff  is  vested  with 
the  rights  of  the  said  mortgagee."  The  reply  admits  the  execu- 
tion and  delivery  of  the  note  and  mortgage  by  J.  D.  Shields, 
but  denies  that  he  ever  paid  the  note  or  satisfied  the  mortgage, 
as  charged  in  the  answer.  In  support  of  his  title  plaintiff  offered 
in  evidence  the  following  deeds:  (1)  Mortgagee's  deed  from 
John  A.  Kunkle  to  J.  C.  Seabourn,  dated  October  29,  1887. 
This  deed  purports  to  convey  the  land  under  power  of  sale  con- 
tained in  the  mortgage  made  by  defendant  Shields,  and  de- 
scribed in  the  answer.  (2)  Quitclaim  deed  from  »J.  C.  Seabourn 
to  George  W.  Corum,  dated  May  2,  1888.  (3)  Mortgage  deed 
from  George  W.  Corum  to  plaintiff,  L.  C.  Lanier,  to  secure  a 
note  for  $300,  due  in  10  days,  with  power  of  sale,  in  case  of 
default,  dated  April  5,  1889.  (4)  Mortgagee's  deed  from  L. 
C.  Lanier,  under  power  of  sale  to  Alphonso  Howe,  dated  May 
18,  1889.  (5)  Quitclaim  deed  from  Alphonso  Howe  to  plain- 
tiff, Lanier.  No  date  given  in  abstract.  The  record  of  the 
mortgage  from  defendant  Shields  to  Kunkle  showed  an  entry 
of  satisfaction  on  the  margin,  dated  October  16,  1886,  and 
signed  by  Kunkle,  the  mortgagee.  In  explanation  of  that  entry 
of  satisfaction,  Kunkle  testified  that  prior  to  the  entry  he  had 
undertaken  to  sell  the  property  under  his  mortgage,  but  mis- 
described  the  land  in  both  the  advertisement  and  deed.  At  this 
sale  Seabourn  was  also  the  purchaser,  paying  therefor  $305, 
which  paid  the  debt  and  cost  and  $17  or  $18  over,  which  was 
paid  to  Shields,  as  mortgagor,  to  whom  was  delivered  the  note 
and  mortgage,  and  he  then  entered  satisfaction.  That  on  learn- 
ing of  the  misdescription  of  the  land  in  the  previous  sale  and 
deed,  at  request  of  the  purchaser  and  Shields,  he  resold  the 
property,  merely  to  correct  the  mistake.  On  this  sale  nothing 
was  paid.  The  evidence  also  tended  to  show  that  these  pur- 
cha^^es  at  mortgagee's  sale  were  made  by  Seabourn  at  the  request 
of  Shields,  his  son  Abe,  and  Gus  Corum,  and  Seabourn  under- 
took it  for  the  benefit  of  defendant  Shields.  Seabourn  gave 
them  an  agreement  to  convey  as  they  should  direct  upon  repay- 
ing him.  The  parties  borrowed  the  money  to  pay  for  the  land, 
and  Seabourn  signed  the  note  as  security,  with  the  understanding 
that  when  the  amount  was  paid  he  would  convey  as  directed. 
Seabourn  had  the  note  to  pay,  but  the  money  was  afterwards 
repaid  to  him,  a  part  by  Abe  Shields,  but  most  of  it  by  Corum; 
and  at  the  request  of  Shields,  Abe,  and  Corum,  he  conveyed 
the  land  to  the  latter.  The  evidence  is  not  very  clear  from 
or    by    whom     Seabourn    was    repaid.     The    evidence    shows 


DEFECTIVE   FORECLOSURE    AND    SALE.  297 

further  that  the  second  sale  made  under  the  Shields  mort- 
gage was  conducted  by  an  agent,  the  mortgagee  then  being 
sick.  Lanier  was  the  stepson  of  Corum,  and  married  the 
daughter  of  plaintiff.  There  was  conflict  in  the  evidence  as  to 
who  was  in  possession  of  the  property  after  Seabourn  gave  it 
up,  which,  if  important,  cannot  be  intelligently  settled  from 
what  appears  on  the  abstract.  The  facts  were  tried  by  a  jury, 
and  at  request  of  plaintiff  the  court  gave  the  following  instruc- 
tions :  "  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  J.  D.  Shields  and  wife  executed  and  delivered 
the  mortgage  deed  to  John  A.  Kunkle,  read  in  evidence,  and 
that  after  condition  broken  in  said  mortgage  said  Kunkle 
attempted  to  advertise  and  sell  the  land  therein  described,  but 
by  mistake  failed  to  describe  the  said  land  in  the  advertisement 
and  the  mortgagee's  deed,  and  that  J.  C.  Seabourn  became  the 
purchaser  at  such  sale,  and  paid  the  note,  interest,  and  costs 
secured  by  said  mortgage ;  and  if  the  jury  further  find  that  by 
mistake  in  the  first  sale  Kunkle  entered  satisfaction  on  the  margin 
of  the  record  of  the  said  mortgage,  and  that  thereafter,  at  the 
request  of  J.  D.  Shields,  he  advertised  and  sold  the  land  in  said 
mortgage  deed  according  to  tiie  conditions  therein,  and  executed 
and  delivered  to  J.  C.  Seabourn  the  mortgasree's  deed  read 
in  evidence,  —  then  such  conveyance  vested  the  legal  title  to 
the  land  in  controversy  in  Seabourn,  and  that  J.  D.  Shields 
is  stopped  for  denying  Seabourn's  title,  or  those  claiming 
under  him;  and  the  successive  conveyance  from  Seabourn  and 
other,  claiming  under  him,  had  the  effect  to  visit  in  plaintiff  all 
right  and  title  of  defendant  Shields."  Defendant  asked,  but  the 
court  refused  to  instruct,  (1)  that  payment  of  the  mortgage  debt 
by  Seabourn,  the  surrender  of  the  note  to  Shields,  and  the  entry 
of  satisfaction  of  the  mortgage  on  the  record  extinguished  the 
power  of  sale,  and  the  second  sale  and  deed  thereunder  were 
nullities  ;  (2)  though  the  attempted  sales  may  have  operated  as 
an  assignment  of  the  debt  and  mortgage  to  Seabourn,  yet  plaintiff, 
by  the  conveyances  to  him,  succeeded  to  no  such  rights  under  the 
mortgage  as  would  entitle  him  to  recover  in  ejectment  from  the 
mortgagor;  (3)  that  under  the  pleadings  and  evidence  defendant 
Shields  should  have  been  permitted  to  recover. 

1.  It  is  conceded  that  the  first  sale  attempted  by  the  mortgagee, 
in  failing  to  describe  the  land,  either  in  the  advertisement  or 
deed,  did  not  pass  to  the  purchaser  the  legal  title  to  the  property 
sold.  The  same  result  would  follow  a  conveyance  with  a  like 
error  by  the  owner.  It  is  insisted,  however,  by  defendants,  that 
the  sale  and  payment  of  the  purchase  money  in  discharge  of  the 
mortgage  debt  gave  the  purchaser  no  equitable  right  to  the  security, 


298  MORTGAGES. 

but  operated  as  a  complete  and  absolute  discharge  of  the  debt  and 
mortgage.  To  that  proposition  we  do  not  yield  assent.  An 
assignment  of  a  mortgage  in  order  to  tran.sfer  the  entire  legal  and 
equitable  interest  of  the  mortgagee,  must  be  by  deed  containing 
such  words  of  grant  as  will  show  an  intention  of  the  parties  to 
make  a  complete  transfer.  When  a  formal  assignment  is  thus 
made,  and  the  bond,  note,  or  other  evidence  of  the  debt  is 
assigned  and  delivered,  the  assignee  will  be  invested  not  only 
with  the  legal  estate,  but  with  any  power  of  sale  contained  in  the 
mortgage.  Pickett  v.  Jones,  63  Mo.  199 ;  1  Jones  Mortg.  78(5 ; 
15  Amer.  &  Eng.  Enc.  Law,  842.  An  equitnble  assignment 
does  not  require  these  formalities.  In  this  State  the  mere  assign- 
ment of  the  debt  carries  with  it  the  mortgage  as  an  incident, 
which  may  be  enforced  by  the  assignee  in  his  own  name  ;  and  an 
equitable  assignment  will  be  declared  and  enforced  by  way  of 
subrogation  whenever  right  and  justice  require  that  it  should  be 
done.  So  it  is  held  that  a  sale  of  the  mortgaged  premises  which 
ia  ineffective  on  account  of  defects  in  the  execution  of  the  power 
will  operate  as  an  equitable  assignment  of  the  mortgage  to  the 
purchaser  if  he  paid  the  purchase  money  in  good  faith,  and  it 
was  applied  to  the  satisfaction  of  the  mortgage  debt.  Wilcoxon 
V.  Orfborn,  77  Mo.  632  ;  Honaker  v.  Shough,  55  Mo.  472;  Priest 
V.  City  of  St.  Louis,  103  Mo.  652;  15  S.  W.  Kep.  989;  Jones 
Mortg.,  §  1678.  The  evidence  in  this  case  shows  that  Seabourn 
purchased  in  good  faith,  and  paid  to  the  mortgagee  the 
purchase  price,  which  was  applied  to  the  payment  of  the 
debt  secured.  In  this  purchase  he  intended  to  buy  and  sup- 
posed be  had  bought,  the  mortgaged  property.  He  got  nothing 
in  law  for  the  money  paid,  and  he  was  in  equity  entitled  to 
the  security  of  the  mortgage  for  the  amount  due  on  the  note 
when  paid. 

2.  After  a  foreclosure  sale  under  a  mortgage  the  title  of  the 
purchaser  comes  through  the  mortgage.  The  mortgage  is  not 
satisfied,  but  foreclosed.  It  is  therefore,  in  such  case,  improper 
to  make  an  entry  of  satisfaction  on  the  record.  The  entry  made 
by  the  mortgagee  in  this  case  was  intended  to  mean  nothing  more 
than  that  the  mortgage  had  been  satisfied  by  a  sale  of  the  prem- 
ises. It  could  have  no  greater  efiect,  at  least  between  the 
parties,  than  the  sale  and  deed  thereunder.  Indeed,  after  the 
equitable  assignment  of  the  mortgage,  Kunkle,  as  mortgagee,  as 
between  himself  and  the  purchaser,  had  no  power  to  enter  satis- 
faction. Entries  of  this  kind  are  open  to  explanation  by  parol 
evidence,  and  a  direct  proceeding  to  impeach  them  is  not  required. 
Joerdon  v.  Schrimpf,  77  Mo.  384;  Valle  v.  Iron  Mountain  Co., 
27    Mo.  455;  Chappell    v.  Allen,  38    Mo.  213.     The  evidence 


DEFECTIVE    FORECLOSURE    AND    SALE.  299 

shows  very  couclusively  tliut  this  entry  was  made  without  author- 
ity, under  a  mistaken  idea  of  duty,  and  under  the  l)elief  that  the 
sale  had  eti'eotually  forechj^ed  the  mortgage.  It  should  not  be 
allowed  to  stand  in  the  way  of  the  purchaser's  rights. 

3.  As  to  the  effect  of  the  second  bale.  By  a  recent  well-con- 
sidered decision  of  this  court  rendered  in  bane,  it  was  held  that 
a  sale  and  conveyance  of  the  mortgaged  preniises  by  a  mort- 
gagee or  trustee,  acting  under  a  power,  though  defectively  exe- 
cuted, passed  the  legal  estate  to  the  purchaser,  subject  to  the 
right  of  redemi)tion.  In  such  case  the  title  passes  by  a  convey- 
ance of  the  propei  tv  by  one  holding  the  title.  Schanawerk  v. 
Hobrecht  (Mo.  Sup"),  22  S.  W.  Kep.  949.  The  first  sale  and 
conveyance  here  was  not  of  the  niortgaged  property  at  all, 
owing  to  a  misdescription  ;  and  the  legal  title  was  not  affected, 
but  remained  in  the  mortgagee,  who  held  it  in  trust  for  the  ben- 
efit of  the  equitable  assignee  of  the  debt.  Though  the  validity 
of  the  second  sale  may  be  questioned  by  reason  of  the  irregu- 
larity arising  fiora*  the  absence  of  the  mortgagee  when  it  was 
made,  and  the  employment  of  an  agent  to  conduct  it,  there  can 
be  no  doubt  that  the  legal  title  passed  to  Seabourn  by  the  deed, 
and  under  whom  plaintiff  claims  through  mesne  conveyances, 

4.  Aside  from  all  these  considerations,  we  think  the  evidence 
conclusively  shows  that  defendant  Shields  by  his  conduct  and 
agreements,  is  estopped  to  dispute  the  absolute  foreclosure  of 
this  mortgage.  The  first  sale  was  made  or  attempted  at  his 
request,  with  the  information  that  his  son  would  buy  the  prop- 
erty. After  the  sale  ho  received  from  the  mortgagee  $16  or 
$17,  which  remained  of  the  proceeds  of  the  sale  afier  the  debt 
had  been  paid.  The  second  sale  was  made  by  Kunkle  at  the 
reque-t  of  Seabourn  and  defendant  Shields,  and  for  the  pur- 
pose, as  they  declared,  of  correcting  the  mistake  in  the  pre- 
vious sale,  and  of  putting  the  title  in  Seabourn.  So  far  as 
Kunkle  acted  it  was  under  the  direction  of  Shields. 
Shields'  conduct  is  explained  in  the  undisputed  evidence  that 
Seabourn,  in  making  the  purchases,  was  acting  for  him,  his  son, 
and  Corum,  under  an  agreement  by  which  he  was  to  convey  the 
land,  according  to  their  direction,  upon  being  reimbursed  for 
what  he  had  advanced.  After  the  title,  at  the  request  of  Shields, 
had  been  vested  in  Seabourn,  a  new  arrangement  was  made, 
wholly  independent  of  the  mortgage.  Under  that  agreement 
Seabourn  was  to  hold  the  title  as  security  for  the  money 
advanced  to  pay  the  mortgage  debt.  Under  this  transaction  and 
contract  the  right  of  redemption,  if  it  would  otherwise  have 
existed,  was  clearly  waived  by  Shields,  and  he  was  estopped  to 
dispute  the  validity  of  the  mortgagee's  sales.     Austin  v.  Loring, 


300  MORTGAGES. 

63  Mo.  22  ;  Nanson  v.  Jacob,  93  Mo.  346;  6  S.  W.  Rep.  246; 
Jones  Mortg.,  §  1484,  If  defendant  has  any  remedy  it  is  upon 
the  contract  under  which  Seabourn  took  and  held  the  title  for 
him,  upon  which  no  issue  was  made  or  determined  in  this 
record. 

5.  Under  the  foreclosure  sale  the  legal  title  of  the  heirs  of 
Mrs.  Shields,  wife  of  defendant,  who  died  before  the  first  sale, 
if  any  they  had,  also  passed  to  the  purchaser,  and  no  one  en- 
titled is  seeking  to  redeem  their  interest.  A  mere  right  of 
redemption  in  a  third  person,  after  foreclosure,  is  not  such  an 
oustanding  title  as  will  defeat  a  recovery  in  ejectment.  The 
title  *'  must  be  such  a  one  as  the  owner  of  the  title  himself  could 
recover  on  if  he  were  asserting  it  in  an  action.  It  must  be  a 
present,  subsisting,  and  operative  title."  McDonald  v.  Schnei- 
der, 27  Mo.  405;  Woods  v.  Hildebrjlnd,  46  Mo.  287.  We  see 
no  error  in  the  record,  and  the  judgment  is  affirmed.  All 
concur. 


Foreclosure    of    Mortgage    Where    Part    of    the   Mortgaged 
Property  is  Liocated  in  Another  State. 

Union  Trust  Co.  v.  Olmstead,  102  N.  Y.  729;  7  N.  E.  822. 

Appeal  from  an  order  of  the  general  term,  fifth  department, 
reversing  so  much  of  an  order  of  the  Monroe  special  term  as 
denies  a  motion  of  plaintiff  and  the  purchaser  at  a  foreclosure  to 
amend  the  judgment,  and  amending  the  judgment  nunc  pro  tunc. 

Danforth,  J.  The  plaintiffs  sought  by  foreclosure  and  sale, 
to  enforce  a  mortgage  executed  by  the  defendant  corporation. 
The  supreme  court  had  jurisdiction  over  the  cause  of  action 
and  the  parties,  and  its  decree  is  valid,  although  part  of  the 
premises  covered  by  it  are  in  another  State.  Its  writ  may  not 
be  operative  there,  nor  its  judgment  capable  of  execution  as 
against  that  portion  of  the  property,  and  for  that  reason  the 
court  might  have  required  the  mortgagor  to  execute  a  convey- 
ance to  the  purchaser  in  order  that  the  whole  security  offered  by 
the  mortgage  should,  so  far  as  possible,  be  made  effective. 
Muller  V.  Dows,  94  U.  S.  450.  This  was  not  done,  but  the 
power  of  the  court  was  not  exhausted,  and  what  it  might  have 
ordered  in  the  first  instance  it  could  still  require  by  amendment. 
The  order  appealed  from  goes  no  further  than  to  carry  out  the 
intention  of  the  parties  to  the  mortgage,  as  ascertained  by  the 
decree.  It  relates  to  a  matter  within  the  jurisdiction  of  the 
court,  and  its  exercise  is  not  the  subject  of  review.  The  appeal 
should  therefore  be  dismissed. 

All  concur  except  Miller,  J.,  absent. 


TO    WHOM    DESCENDIBLE.  301 

CHAPTER     XI. 

REVERSION. 

To  Whom  Descendible. 

Kellett  V.  Shepard,  139  111.  433, 

Magruder,  C.  J.  Nelson  Still niJin  died  testate  on  August  31, 
1871,  in  Galena,  Jo  Daviess  County,  and  his  will  and  the  codicils 
thereto  were  admitted  to  i)robate  in  the  county  court  of  that 
county  on  Sei)teml)er  18,  1871.  The  will  is  dated  January  27, 
1859.  The  first  codicil  bears  date  October  4,  1862,  and  the 
second,  August  9,  1867.  The  testator  left  surviving  him  his 
widow,  Louisa  Stillman,  and  two  children,  Charles  P.  Stillman 
and  Mary  Louisa  Stillman,  and  no  other  children  or  descendants 
of  children.  The  widow  subsequently' married  Thomas  P.  Kel- 
lett, and  is  the  appellant  herein.  The  son,  Charles  P.  Stillman, 
died  intestate  on  March  10,  1883,  and  left  no  children  or  de- 
scendants of  children.  He  was  twice  married.  His  first  wife 
obtained  a  divorce  from  him  for  his  fault,  and  married  a  man 
named  Eldredge,and  is  now  known  as  Fannie  Turner  Eldredge. 
His  second  wife,  named  Louisa  or  Luc}',  survived  him,  and  is 
now  his  widow.  The  daughter,  Mary  Louisa  Stillman,  married 
a  niJia  named  George  Piide,  from  whom  she  was  divorced 
for  his  fault  some  time  before  February,  1887,  and  thereupon 
resumed  her  maiden  name.  She  died  testate  on  December  4, 
1888,  leaving  her  surviving  no  husband  nor  child  nor  children, 
nor  any  descendants  of  child  or  children.  Appellant,  the  widow 
of  the  testator,  renounced  the  provisions  of  the  will,  and  elected 
to  take  her  dower  in  the  realty  and  her  share  of  the  personalty, 
as  allowed  by  law,  and  has  long  ago  settled  with  the  trustees 
under  the  will  in  relation  thereto.  The  will  gives  and  bequeaths 
the  whole  estate  to  three  trustees,  to  have  and  to  hold  the  same 
to  themselves,  their  heirs  and  assigns  forever,  upon  certain  uses 
and  trusts.  The  widow  is  to  have  the  homestead  and  the  income 
of  one- third  of  the  net  residue  of  the  estate  during  her  life 
and  so  long  as  she  re-mains  unmarried.  One-tenth  of  the  residue 
or  remainder  is  given  to  three  charitable  societies.  The  will 
then  proceeds  as  follows:  "  Fourtlily.  All  the  residue  and 
remainder  of  my  estate,  real  and  personal,  at  the  time  of  my 
decease,  after  deducting  all  lawful  expenses  of  settlement  and 
management,  to  be  disposed  of  as  follows,  to  wit ;  The  one-half 
of  the  same,  being  one-half  of  the  residue  to  be  so  set  apart, 
invested,  secured,  and  conveyed  and  managed,  so  as  to  produce 


302  REVERSION. 

and  fiiniish  :i  revenuo  or  annuul  income  which  I  direct  to  be  paid 
in  (juartcrly  or  half-yearly  payments  to  my  daugiiter,  Mary 
Louisa,  and  for  her  sole  and  separate  use  during  her  natural  life, 
and  the  principal  of  said  portion  so  set  off  to  be  so  conveyed 
that  after  her  death  it  shall  descend  and  go  in  reversion  to  her 
chihl  or  children  should  she  have  any;  but,  in  case  she  died  hav- 
itiiT  no  issue,  in  such  case  to  sfo  to  and  descend  in  reversion  to 
my  heirs  at  law.  And  all  the  residue  or  remainder  of  my  net 
estate,  real  and  personal,  not  otherwise  provided  for  my  said 
wife  and  daughter,  and  for  said  charitable  purposes  before 
named,  the  princij)al  of  the  same  to  go  to  and  revert  to  and  be 
paid  over  to  my  son  Charles  Phelps  wlieu  he  shall  have  attained 
to  the  age  of  thirty  years;  and  also  all  of  the  residue  of  the  net 
income  or  yeaily  profits,  after  the  above  provisions  are  satisfied, 
is  to  go  to  and  be  paid  over  to  him  in  half-yearly  payments,  to  be 
for  his  use  and  support,  until  he  receives  his  portion  at  the  age 
of  thirty  years."  The  testator  wills  and  bt-queaths  to  his  son 
the  reversion  of  the  homestead  on  the  death  or  marriage  of  the 
widow,  and  directs  that  the  property  set  apart  "  for  a  revenue 
or  income  for  the  support  of  n)y  said  wife,  shall,  after  her 
death,  descend  in  reversion  to  ray  heirs  at  law."  The  will  pro- 
vides for  an  appraisement  of  the  real  and  jiersonal  property  by 
the  executors  at  the  testator's  death,  as  a  basis  for  settling  the 
bequests  to  the  said  societies.  It  gives  the  trustees  and  executors 
power  to  sell  any  of  the  real  estate,  except  the  homestead,  and 
invest  the  proceeds,  or  "  lease  the  same,  as  they  may  deem  best 
for  the  interest  of  the  family."  It  gives  them  power  to  invest 
the  moneys  of  the  estate  and  the  discretion  to  decide  at  what 
time  "  to  set  apart  and  make  separate  provision  of  property  for 
the  income  to  be  paid  to  my  said  daughter  and  wife," 
and  also  the  discretion,  if  they  deem  best,  to  keep  the  estate 
together  until  the  son  reaches  the  age  of  30.  Each  provision  of 
property  is  to  be  subject  to  its  own  portion  of  all  lavvful  charges 
against  it,  such  as  for  taxes,  insurance,  etc.  The  trustees 
are  appointed  ♦'  guardians  of  the  persons  and  estates  of  ray 
children,  or  any  of  them,  during  their  minority."  The  testator 
then  proceeds  to  say:  "  Should  I  at  my  decease  have  other 
children  living  than  the  two  provided  for,  *  *  *  my  children 
in  such  case,  instead  of  the  provisions  made  for  ray  daughter, 
Mary  Louisa,  and  my  son,  Charles  Phelps,  shall  all  receive  the 
residue  of  my  estate,  share  and  share  alike."  After  appoint- 
ing the  trustees  to  be  executors,  he  closes  his  will  as  fol- 
lows: "In  recapitulation,  my  intentions  and  purposes  in  this 
will  are  :  Firsts  to  provide  a  home  for  my  said  wife,  and  after 
her  decease  or  marriage  the  homestead  to   revert  to  my  son, 


TO    WHOM    DESCENDIBLE.  303 

Charles  Phelps;  also  to  provide  an  income  for  the  support  and 
maintenance  of  my  said  wife  dLuin<i:  her  life  or  widowhood,  and 
after  her  decease  the  principal  set  apart  for  said  provisions 
to  descend  in  reversion  to  my  heirs;  second ^  io  give  one-tenth 
of  the  residue  of  my  estate  to  the  three  charitable  societies 
named,  each  to  receive  one-third  of  said  one-tenth  ;  third,  to 
provide  that  one-half  of  the  residue  or  remainder  of  my  estate 
be  set  off  for  an  income  to  my  daughter,  Mary  Louisa,  during 
her  life,  and  the  principal  to  revert  to  her  children,  should  she 
have  any;  fovrt/t,  to  provide  that  the  residue  of  my  estate  go 
to  my  son,  Charles  Phelps,  when  he  arrives  at  the  age  of  thirty 
years,  and  the  net  residue  of  the  income  or  profits  until  he  at- 
tains that  age." 

The  first  codicil  provides  that,  of  the  one-tenth  given  to  the 
charitable  societies,  only  $500  shall  be  given  to  each  of  them, 
and  all  of  the  one-tenth  over  $1,500,  if  anything,  shall  be  in- 
vested in  bonds,  and  the  interest  paid  yearly  or  half-yearly  to  the 
testator's  six  sisters  in  certain  proportions  during  their  lives,  the 
portion  of  each  upon  her  death  to  go  to  his  son,  Charles  P.; 
*'  and,  after  the  decease  of  all  of  the  above-named  sisters,  the 
principal  so  provided  shall  descend  and  go  to  my  said  son, 
Charles  Phelps,  and  to  his  heirs,"  It  also  provides  that  the  exec- 
utors may,  at  the  written  request  of  the  widow,  if  they  shall 
think  it  for  the  interest  of  the  family,  sell  the  homestead  and 
invest  the  ])roceeds  for  the  widow,  so  long  as  she  remains  un- 
married, "  and,  after  her  marriage  or  decease,  the  principal  so 
provided  for  said  income  shall  go  and  descend  to  my  son, 
Charles  Phelps  Stillman."  The  second  codicil  merely  provides 
for  the  mode  of  paying  the  widow  dower  in  real  estate  unsold, 
and  in  its  proceeds,  if  sold,  in  case  of  her  remarriage,  and  for 
the  payment  of  the  income  in  the  one-tenth  that  had  belonged  to 
one  of  the  sisters,  that  had  died,  to  two  of  the  living  sisters. 
The  debts  of  the  testators  were  all  paid.  The  dower  of  the 
widow  was  apportioned  to  her  in  the  personal  property.  On 
June  25,  1882,  the  sou,  Charles  P.  Slillman,  attained  the  age  of 
30  years,  and  the  trustees  paid  and  turned  over  to  him  all  his 
share  of  the  real  and  personal  property  of  the  estate  under 
the  will,  and  made  a  full  settlement  with  him,  and  took 
his  receipts  therefor.  One  of  the  three  trustees  resigned 
in  July,  1877,  and  another  died  in  October,  1882.  In  a  [)ro- 
ceeding  thereafter  begun  l)y  the  remaining  trustee  in  the  circuit 
court  of  Cook  County  against  Mary  L.  Stillman,  the  daughter 
and  the  appellant  and  her  husband,  and  the  trustee  who  had 
resigned,  and  the  heirs  of  the  deceased  trustee,  a  decree  was 
entered  on   February  28,  1887,  finding  that  the   real  and  per- 


304  REVERSION. 

sonal  property  then  reuiiiinlng,  and  vested  in  said  trustees  or  their 
heirs,  was  as  foUows:  The  premises  Nos.  198,  200,  and  202, 
Noith  Chirk  street,  in  Chii-ago,  subject  to  a  yearly  dower  of  $392 
payable  to  appelhmt  ;  the  undivided  b:df  of  the  pren)ises  No. 
16G  South  Chirk  street,  in  Chicago,  subject  to  the  dower  there- 
in of  ai>pelhint ;  a  lot  on  East  Fifty-Seventh  street,  in  New  York 
City,  which  had  been  conveyed  by  one  Hamilton  on  June  3, 
1881,  to  Mary  L.  Stillman  ;  money  amounting  to  $1,G93.75, — 
and  lh:it  said  property  and  money  was  then  lield  by  said  trustees 
in  trust  for  said  daughter,  Mary  L.  Stillman,  during  her  life, 
and  after  her  death  upon  further  trusts.  The  said  decree 
appointed  John  G.  Kendig  trustee  in  place  of  the  former  trustees, 
whose  accounts  were  settled  and  approved,  and  directed  that  said 
money  and  property  be  paid  and  conveyed  to  said  new  trustee 
to  hold  for  the  benefit  of  Mary  L.  Stillman  ( subject  to  said  dower 
rights)  upon  the  same  trusts  and  subject  to  the  provisions  of 
said  will.  The  directions  of  the  decree  were  subsequently  car- 
ried out.  It  is  admitted  herein  by  both  parties,  both  in  the 
pleadings  and  upon  argument,  that  the  premises  in  New  York 
city  above  mentioned  were  obtained  by  said  trustees  from  Mary 
L.  Stillman  in  her  lifetime  in  return  for  moneys  belonging  to  the 
estate,  which  were  advanced  to  her  at  her  request,  "  and  that 
said  premises  are,  in  law,  personal  rather  than  real  property, 
belonging  to  said  estate." 

The  oidy  interest  which  is  in  controversy  in  this  suit  is  that 
which  was  set  apart  by  the  will  for  the  use  of  Mary  L.  Stillman 
during  her  life.  That  interest  consists  of  the  money  and  the 
Chicago  and  New  York  property  above  described.  The  bill  in 
the  present  case  was  filed  in  the  superior  court  of  Cook  County 
on  November  11,  1889,  by  the  appellees  herein,  who  are  the 
sisters  and  brother  and  nephews  and  nieces  of  the  deceased, 
Nelson  Stillman,  for  the  partition  and  distribution  of  said  prop- 
erty and  money  among  themselves,  and  for  a  construction  of 
said  will.  The  defendants  to  the  bill  were  the  trustee,  Kendig; 
Louisa  Kellett,  the  appellant,  and  her  husband;  Daniel  B. 
Childs,  executor  of  the  estate  of  Mary  L,  Stillman,  deceased; 
a  sister  of  Nelson  Stillman;  and  certain  of  his  nephews  and 
nieces,  and  others.  The  contention  of  appellees  is  that  the 
brother  and  sisters  and  nephews  and  nieces  of  Nelson  Stillman 
were  his  heirs  at  law  when  his  daughter  died,  and  are  therefore 
owners  of  said  money  and  property.  The  contention  of 
appellant  is  that  Charles  P.  Stillman  and  Mary  L.  Still- 
man, who  were  the  testator's  heirs  at  law  at  his  decease,  took 
the  share  in  which  the  daughter  had  a  life  interest,  and  that 
the  appellant,   as  heir  of  her  son  and  daughter,  is  entitled  to 


1:0   WHOM   DESCENDIBLE.  305 

have  all  of  said  money  and  property.  Appellant  further  con- 
tends that,  if  the  interest  in  question  is  to  go  to  those  who  were 
her  husband's  heirs  at  the  time  of  her  daughter's  death,  she  w!is 
one  of  such  heirs,  an<l  as  such  inherited  one-half  the  realty  and 
all  the  personalty.  The  decree  of  the  court  below  found  that 
the  persons  designated  as  heirs  at  law  in  the  fourth  clause  of  the 
will  were  those  who  were  such  at  the  date  of  the  death  of  Mary 
L.  Still  man,  and  that  appellants  were  entitled  to  all  the  person- 
alty, and  one-half  of  the  realty,  and  that  the  appellees  were 
entitled  to  the  other  nndivided  one-half  of  the  realty,  and  that 
partition  and  distribution  should  be  made  accordingly.  The 
appellant  appeals  from  so  much  of  the  decree  as  gives  any  por- 
tion of  the  estate  to  the  appellees.  The  appellees  assign,  as 
cross-error,  that  the  decree  gave  any  portion  of  the  estate  to  the 
appellant. 

Manifestly,  the  decision  of  this  case  depends  upon  the  con- 
struction to  be  given  to  that  part  of  the  fourth  clause  of  the 
will,  as  above  quoted,  which  concerns  the  share  set  apart  for 
the  use  of  the  daughter.  The  will  gives  her  a  life-interest 
in  said  share,  and  then  provides  that,  "  after  her  death  it  shall 
descend  and  go  in  reversion  to  her  child  or  children  should  she 
have  any  ;  but  in  case  she  died  having  no  issue,  in  such  case  to 
go  to  and  descend  in  reversion  to  my  heir  at  law."  As  the  life- 
estate  has  ended,  and  the  tenant  for  life  died  without  issue,  it 
becomes  material  to  inquire  who  were  the  heirs  at  law  to 
whom  the  share  in  question  has  gone  and  descended  in  rever- 
sion. Ordinarily,  the  words  *' heir,"  or  **  heirs  at  law"  are 
used  to  designate  those  persons  who  answer  this  description 
at  the  death  of  the  testator.  The  word  "  heir,"  in  its  strict 
and  technical  import,  applies  to  the  person  or  persons  appointed 
by  law  to  succeed  to  the  estate  in  case  of  intestacy.  2  Bl. 
Coram.  201  ;  Rawson  v.  Rawson,  52  111.  62.  Hence  where  the 
word  occurs  in  a  will  it  will  be  held  to  appl}'  to  those  who  are 
heirs  of  the  testator  at  his  death,  unless  the  intention  of  testator 
to  refer  to  those  who  shall  be  his  heirs  at  a  period  subsequent  to 
his  death  is  plainly  manifested  in  the  will.  This  construction 
or  definition  is  not  changed  by  the  fact  that  a  life-estate  may 
precede  the  bequest  to  the  heirs  at  law,  nor  by  the  circumstance 
that  the  bequest  to  the  heirs  is  contingent  on  an  event  that 
may  or  may  not  happen.  2  Jarm.  Wills  (Rand,  and  T. 
5th  Amer.  Ed.),  672;  2  Williams  Ex'rs  (6th  Amer.  Ed.), 
1211. 

In  the  case  at  bar,  the  heirs  at  law  who  were  to  take  the  share 
set  apart  to  the  daughter,  after  her  death  without  issue,  were  the 
son,  Charles  P.,  and  the  daughter,  Mary  L.,  who  were  living  at 

20 


306  REVERSION. 

the  time  of  the  testator's  death,  and  were  his  only  heirs  at  law  at 
that  time,  unless  it  shall  appear  that  a  contrary  intention  is  plainly 
indicated  by  the  will,  construed  as  a  whole  and  with  reference  to  all 
its  provisions.  It  is  no  proof  of  such  contrary  intention  that  the 
daughter  at  the  expiration  of  whose  life-estate  the  distiibution 
was  to  be  made,  was  herself  one  of  the  heirs  at  law.  Nor  does 
it  make  any  difference  in  the  correctness  of  this  construction 
whether  those  who  are  heirs  at  law  at  the  time  of  the  testator's 
death  are  living  or  dead  when  the  period  of  distribution  arrives. 
Bequests  of  personalty  as  well  as  devises  of  real  estate  are 
subject  to  this  rule  of  construction.  Cases  which  hold  to  the 
contrary  of  the  views  here  expressed  are  those  where  the  inten- 
tion of  the  testator  to  designate  as  his  heirs  at  law  those  who 
should  be  such  at  the  period  of  distribution  has  been  clearly 
manifested  by  the  terms  of  the  will.  In  the  present  case  we 
think  that  the  estate  set  apart  for  the  use  of  the  daughter  vested  in 
the  son  and  daughter,  as  heirs  at  law  of  their  father  at  the  time 
of  his  decease.  Although  the  trustees  held  the  legal  title,  the 
equitable  title  was  vested  in  the  son  and  daughter,  subject  to 
be  divested  by  force  of  the  will  in  the  event  that  Mary 
Louisa  should  have  children.  The  reversionary  estate  vested  in 
the  heirs  at  law  at  the  testator's  death,  was  liable  to  open  to  let 
in  her  children  in  case  she  should  have  any  ;  but  in  the  mean- 
time it  subsisted  in  the  heirs  for  the  purpose  of  drawing  the 
possession  to  them  in  the  event  of  her  death  without  children. 
The  law  always  gives  the  preference  to  vested  over  contingent 
remainders.  It  does  not  favor  the  abeyance  of  estates.  Estates 
in  remainder  vest  at  the  earliest  period  possible  unless  a  con- 
trary intention  on  the  part  of  the  testator  is  clearly  manifested. 
Abbott  V.  Bradstreet,  3  Alden,  587  ;  Tayloe  v.  Mosher,  29  Md. 
453;  Schofield  v.  Olcott,  120  111.  392;  11  N.  E.  Rep.  351; 
Gilpin  V.  Williams,  25  Ohio  St.  283. 

Where  it  is  a  remainder  after  a  life-estate,  it  is  regarded  as  a 
vested  remainder,  and  the  possession  only  is  postponed.  Abbott 
V.  Bradstreet,  supra.  The  fact  that  the  gift  or  devise  must 
open  to  let  in  after-born  children  is  not  inconsistent  with  the 
vesting  of  the  estate  in  interest  at  the  testator's  death,  though 
the  vesting  in  possession  is  deferred  to  the  period  of  distribu- 
tion. McCartney  v.  Osborn,  118  111.  103;  9  N.  E.  Rep.  210. 
"  When  a  bequest  is  made  to  one  or  more  for  life,  remainder  to 
the  testator's  heirs  or  next  of  kin,  or  such  persons  as  would  take 
his  estate  by  the  rules  of  law  if  he  had  died  intestate,  the  bequest 
is  to  those  who  are  heirs  or  next  of  kin  at  the  time  of  his 
decease."  2  Williams  Ex'rs  (Perkins'  6th  Amer.  Ed.),  p. 
1212,  note  d,  and  cases  cited.     "  Where,  in  the  construction  of 


TO   WHOM    DESCENDIBLE.  307 

a  clause,  there  is  a  doubt  as  to  the  point  of  time  at  which  it  was 
intended  the  estate  siiould  vest,  the  earliest  will  be  taken."  2 
Jarm.  Wills  (Rand  &  T.,  5th  Amer.  Ed.),  p.  40H,  and  cases. 
Ill  Bullock  V.  Dovvnes,  9  H.  L.  Cas.  1,  the  lord  chancellor  said  : 
"  Generally  speaking,  where  there  is  a  bequest  to  one  for  life, 
and  after  his  decease  to  the  testator's  Dext  of  kin,  the  cext  of 
kin  who  are  to  take  are  the  persons  who  answer  that  description 
at  the  death  of  the  testator,  and  not  those  who  answer  that  de- 
scription at  the  death  of  the  first  taker.  Gifts  to  a  class  follow- 
ing a  bequest  of  the  same  property  for  life  vest  immediately 
upon  the  death  of  the  testator.  Nor  does  it  make  any  difference 
that  the  person  to  whom  such  previous  life-interest  was  given  is 
also  a  member  of  the  class  to  take  on  his  death. 

There  is  a  review  of  the  English  cases  upon  this  subject  in  2 
Jarman  on  Wills  (5th  Amer.  Ed.),  pp.  670-683,  and  it  is  there 
stated  that  the  law  as  laid  down  in  HoUoway  v.  Holloway,  5  Ves. 
399,  *'  has  long  been  clearly  settled."  That  was  a  case  where  a 
testator  bequeathed  £5,000  in  trust  for  his  daughter  for  life,  and 
after  her  decease  for  her  children  living  at  her  decease,  in  such 
shares  as  she  should  appoint;  and,  in  case  she  should  leave  no 
child,  then,  as  to  £1,000,  in  trust  for  the  execntors,  adminis- 
trators, and  assigns  of  the  daughter;  and  as  to  £4,000  the 
remainder  in  trust  for  the  person  or  persons  who  should  be  his 
heir  or  heirs  at  law.  The  danghter  died  without  leavinor  ohil- 
dren  ;  and  she  and  two  other  daughters  were  the  testator's  heirs 
at  law.  The  master  of  the  rolls  held  that  the  prima  facie  con- 
struction of  the  words  and  their  legal  meaning  would  be  '  heirs 
at  law  at  the  testator's  own  death  ; '  and  that  he  could  not,  upon 
the  ground  that  the  daughter  was  one  of  the  heirs,  conclude  that 
heirs  at  a  subsequent  time  were  intended."  There  is  also  an 
able  review  of  the  cases  by  Mr.  Justice  Hoar,  of  the  Supreme 
Court  of  Massachusetts,  in  Abbott  v.  Bradstreet,  supra,  where 
most  of  the  cases  to  which  we  have  been  referred  by  counsel  for 
appellees  are  commented  upon  and  shown,  to  be  exceptional, 
and  to  be  founded  on  special  circumstances  indicating  the  inten- 
tion of  the  testator  to  make  a  gift  or  devise  to  those  who  were 
his  heirs  at  the  time  of  distribution.  It  is  there  said  that  Hol- 
loway V.  Holloway  is  a  leading  case,  which  has  been  repeatedly 
followed  and  cited  with  api)iobation,  and  a  succession  of  decis- 
ions is  pointed  out  in  which  its  doctrine  has  been  approved. 

We  have  set  forth  herein  substantially  all  the  material  por- 
tions of  Nelson  Stillman's  will,  and,  upon  the  application  thereto 
of  the  principles  already  announced,  we  discover  no  intention  on 
his  part  to  designate  those  who  should  be  his  heirs  at  law  at  the 
date  of  his  daughter's  death  as  the  persons  who  were  to  take  the 


308  REVERSION. 

interest  set  apart  for  use  during  her  life.  In  the  absence  of 
sucli  intention,  tlie  established  rules  of  construction  which  point 
to  those  who  were  the  heirs  at  law  at  the  date  of  his  (^ieccase,  as 
the  parties  entitled  to  take,  must  prevail.  In  Cable  v.  Cable,  16 
Beav.  507,  it  was  said:  ♦'  There  is  always  a  difficulty  in  fixing 
the  death  of  the  tenant  for  life  as  the  period  at  which  the  next 
of  kin  of  the  testator  are  to  be  determined,  for  in  so  construing 
it  you  must  introduce  the  words,  '  if  the  testator  had  died  then  ; ' 
that  is,  the  sentence  must  run  thus:  ♦  To  n)y  next  of  kin  as  if  I 
had  died  at  the  same  time  as  the  tenant  for  life.'  " 

In  recapitulating  his  intentions  and  purposes  at  the  end  of 
the  will,  the  testator  says,  in  the  third  paragraph,  that  he 
intends  *'  to  provide  that  one-half  of  the  residue  or  remain- 
der of  my  estate  be  set  off  for  an  income  to  my  daugk- 
ter,  Mary  Louisa,  during  her  life,  and  the  principal  to  revert 
to  her  children,  should  she  have  any."  It  will  he  observed  that 
here  he  omits  the  following  words,  which  he  had  previously 
used:  ''But  incase  she  died  having  no  issue,  in  such  case  to 
go  to  and  descend  in  reversion  to  my  heirs  at  law."  In  the 
recapitulation  he  provides  for  no  disposition  whatever  of  the 
one-half  of  the  residue  iu  the  event  of  his  daughter's  death  with- 
out issue.  If  the  third  paragraph  of  the  recapitulation  had  been 
the  only  provision  in  the  will  in  regard  to  this  share,  the  law 
would  give  it,  at  the  death  of  the  daughter  without  children,  to 
those  who  were  the  testator's  heirs  at  law  at  his  decease.  Bates 
V.  Gillett,  132  111.  287;  24  N.  E.  Rep.  611.  All  parts  of  the 
will  must  be  construed  together.  The  second  provision,  which 
leaves  the  remainder  undisposed  of,  and  the  first  provision,, 
which  directs  it  to  go  to  the  testator's  heirs  at  law,  evidently 
mean  the  same  thing.  Under  the  second  provision,  the  estate 
would  descend,  as  intestate  estate,  to  the  testator's  heirs  at  law. 
Bates  V.  Gillett,  supra.  It  follows  that  the  testator  intended  to 
designate,  by  the  use  of  the  words,  "  heirs  at  law"  in  the  first 
provision,  those  who  would  be  his  heirs  in  case  of  intestacy. 
The  estate,  in  case  of  intestacy,  would  have  gone  to  his  son  and 
daughter.  Rawson  v.  Rawson,  52  111.  62,  The  provision  in 
the  fourth  clause  of  the  will  is  that  the  remainder  shall  "  go  to 
and  descend"  in  reversion  to  the  testator's  heirs  at  law.  In 
Abbott  V.  Bradstreet,  supra,  the  words  were,  "  at  whose  decease 
the  said  fund  is  to  go  and  descend  to  my  heirs  at  law,"  and  it 
was  there  said:  "The  words  '  go  and  descend  '  are  significant, 
as  indicating  the  wish  of  the  testator  that  the  remainder 
should  be  distributed  as  if  it  were  intestate  estate."  It 
would  not  be  an  unreasonable  construction  of  the  present  will 
to  hold  that  the  devise  of  the  reversionary  interest  to  the  heirs 


TO    WHOM    DESCENDIBLE.  309 

at  law  was  void,  because  it  gives  jjiecif^ely  the  same  estate  that 
the  heirs  woiiM  take  by  descent  if  the  particular  devise  to  them 
had  l)een  omitted  from  the  will.      The  title  by  descent  is  regarded 
as  a  worthier  and  belter  title  than  the  title  by  devise  or  pur- 
chase.    4  Kent.  Comm.  *506,  *507 ;  Ellis  v.  Page,  7  Ciish.  161. 
But  such  construction  is  unnecessary  here,  as  the  estate  vested 
in  interest  at  the  testator's  death,  althongh  the  vesting  in  pos- 
session  or   enjoyment    was   j^ostpoue.!    until    the   death   with(;ut 
issue  of  the  tenant  for  life.     The  remainder  in  this  case  is  not 
a  contingent  one,  so  as  to  jiostpoue  the  vesting  in  interest,  as 
well    as    in    possession,    until    the    peiiod    of    distribution.     A 
remainder  is  contingent  if  the  persons  who  are  to  take  are  not 
in  esse,  or  aie  not  detinitel}"  ascertained.     Bates  v.  Gillett,  supi'a. 
Here  the  heirs  at  law   were  in  esse  and  definitely  ascertained  at 
the  testator's  death.      Althouirh  tlie  remainder  vested  in  them  at 
that  time  was   liable   to   open   and   let   in   the   children   of    the 
daughter,  if  there  should  be  any.     We  cannot  see  that  there  is 
any  element  of  futnrity  or  supervisorship  annexed  to  the  gift  itself. 
McCartney  v.  Osl)urn,  supi'a;  Cheney  v.  Teese,  108  111.  473.    That 
which  is  postponed  is  the  enjoyment  of  the  estate,  and  not  the 
vesting  of    the  title    to    it.     The    testator    does    not  direct  the 
remainder  to  go  to   those  who  shall   be  his  heirs   at  the  termi- 
nation of  the  life-estate,  or  to  tho?e  heirs  who  shall  be  surviving 
at  that  time.     He  nowhere  in  his  will  evinces  an  intention  to 
have  the  reversionary  estate  descend  to  his  brother  and  sisters, 
or  their  descendants.     Such  an  intention    is    negatived  by  the 
fact  that  he  contemplated  the   pos-ibilit}'  of  having  other  chil- 
dren at  his  death  than  the  two  named  in  the  will  ;  by  the  fact 
that,    under   the    provision    of    tiie    codicils,    the    fund,    whose 
income  was  to  l)e  paid  to  his  sisters,  was  to  go,  after  their  death, 
to  his  son  "and  to  his  heirs;  "  and  by  the  further  fact  that  all 
the  specific  pi'ovisions  of  the  will  :ire  in  the  interest  of  his  son 
and  daughter,  and  such  other  children  as  he  might  have  at  his 
death.     The  language  of  the  fourth  clause  implies  a  present  gift 
to  his  lieirs  at  law,  and  amounts  to  a  devise  of  the  reversion 
directly  to  such    heirs,  subject    to  the  life-estate,  and  charged 
with  a  contingent   interest    in    the    daughter's  children,  if    she 
should  have  any.     Another  significant  circumstance  is  the  fact 
that  the  principal  fund,  whose  income  is  set  apart  for  the  sup- 
port of  the  testator's  widow  during  her  life,  is  to  go,  after  her 
death,  "  in  reversion  to  my  heirs  at  law."     It  cannot  be  sup- 
posed that  the  testator  intended  the  expression  *' heirs  at  law" 
to  have  one  meaning  when  applied  to  those  who  should  take  at 
the  termination  of  the  daughter's  life-estate,  and  another  mean- 
ing when  applied  to  those  who  should  take  at  the  termination  of 


310  REVERSION. 

tho  widow's  life-estate.  If  the  heirs  at  law  designated  by  the 
will  are  those  who  shall  be  such  at  the  resj)octive  periods  of  dis- 
tribution, then  tlic  heirs  at  law  at  the  widow's  doatli  niigiit  not  be 
the  same  as  tho  heirs  at  law  at  the  daughter's  death.  The  more 
natural  supposition  is  that  the  testator  intended  to  leave  the 
share  set  apart  to  the  widow  for  life  to  the  same  persons  who 
would  take  the  portion  set  apart  for  the  daughter's  use  during 
her  life.  The  only  way  to  effectuate  such  intention  is  to  give  to 
tho  words  *'  heirs  at  law  "  their  legal  imi)ort  and  meaning,  as 
indicating  those  who  are  heirs  at  law  at  tlie  testator's  death. 
Moreover,  to  hold  that  his  intention  was  to  point  to  his  brother 
and  sisters  and  their  descendants  as  the  j)ersons  who  would  be 
his  heirs  at  law  at  his  widow's  death,  would  be  to  hold  that  he 
anticipated  the  death  of  his  children  as  likely  to  occur  before  the 
death  of  their  mother.  There  is  nothing  to  indicate  that  he 
expected  his  widow  to  outlive  his  children,  although  such  has 
turned  out  to  be  the  case.  In  view  of  the  construction  thus 
given  to  the  will,  it  follows  that  the  title  to  the  property  in  con- 
troversy vested  in  Charles  P.  Stillman  and  Mary  Louisa  Still- 
man  at  the  testator's  death.  At  the  death  of  Charles,  his  one- 
half  interest  therein  descended  as  follows:  All  his  interest  in 
the  New  York  lot,  which  is  to  be  regarded  as  personalty,  and  in 
the  money  in  the  hands  of  tho  trustees,  and  one-half  of  his 
interest  in  the  Chicago  land,  and  dower  in  the  other  half,  went 
to  his  widow,  Louise  or  Lucy  Stillman  ;  the  other  half  thereof 
descending,  two-thirds  to  his  mother,  and  one-third  to  bis 
sister.  Upon  the  death  of  Mary  Louisa,  her  whole  interest 
in  said  property,  including  her  original  one-half  thereof  and 
the  one-third  inherited  from  her  brother,  descended  to  her 
mother,  the  appellant  herein.  There  is  nothing  in  the  record 
to  show  what  the  will  of  Mary  Louisa  Stillman  is.  It  does 
not  seem  to  have  had  reference  to  anything  more  than  cer- 
tain accrued  rents  which  are  given  to  her  executor  by  the 
decree  below.  Counsel  for  both  sides  have  treated  her  estate 
as  intestate,  so  far  as  the  property  involved  in  this  litigation 
is  concerned.  As  we  understand  it,  her  executor  is  not  com- 
plaining of  the  decree  below.  We  Cio  not  deem  it  necessary  to 
discuss  the  question  whether  the  lot  in  New  York  City,  consid- 
ered as  personalty,  should  be  divided  or  distributed  in  accord- 
ance with  the  laws  of  New  York,  or  in  accordance  with  those  of 
Illinois.  We  have  treated  it  as  subject  to  distribution  according 
to  the  statutes  of  Illinois.  The  appellees  cannot  complain  of 
this  mode  of  distribution,  because  it  cannot  concern  them  how 
the  distribution  is  made,  in  view  of  the  construction  we  have 
given  to  the  will.     Nor  can  the  appellant  complain,  as  her  coun- 


LIMITATION  OF  A  REMAINDER  AFTER  FEE  UPON  CONDITION.      311 

8el  takes  the  position  before  this  court  that  the  statutes  of  Illi- 
nois, and  not  those  of  New  York,  should  govern  in  the  matter 
of  such  distribution.  The  decree  of  the  superior  court  is 
reversed,  and  the  cause  is  remanded  to  that  court  for  further 
proceedings  in  accordance  with  the  views  herein  expressed. 


CHAPTER    XII. 

REMAINDERS. 

Outland  v.  Bowen,  118  Ind.  150;  17  N.  E.  281. 

Crozier  v.  Bray,  120  N.  Y.  366;  24  N.  E.  712. 

Siddons  v.  Cockrell,  131  111.  653;  23  N.  E.  586. 

Hitchcock  V.  Sitnpkius,  99  Mich.  198;  58  N.  VV.  47. 

Coxey  V.  Spriuger,  138  Ind.  506;  37  N.  E.  506. 

McGee  v.  Hall,  26  S.  C.  179 ;  1  S.  E.  711. 
Foster  v.  Hackett,  112  N.  C.  54G;   17  S.  E.  426. 

Chapiu  V.  Crow,  147  111.  219;   35  N.  E.  536. 

Seaver  v.  Fitzgerald,  141  Mass.  401 ;  6  N.  E  73. 

Carson  v.  Fuhs,  131  Pa.  St.   256;   18  A.  1017. 

Godman  v.  Simmons,  113  Mo.  122;  120  S.  W.  972. 

liimitations   of  a  Remainder   After   a    Fee   Upon    Condition. 

Outland  v.  Bowen^  118  Ind.  150;  17  N.  E.  281. 

Mitchell,  J.  On  the  25th  day  of  February,  1855,  Joseph 
Bowen,  Sr.,  executed  a  warranty  deed  in  the  common  form,  by 
which  he  conveyed  a  tract  of  land,  situate  in  Wayne  County,  to 
his  granddaughter  Rebecca  Eliz;tbeth  Bowen,  for  the  expressed 
consideration  of  $800.  Following  the  description  of  the  prem- 
ises conveyed,  there  was  written  this  stipulation  :  *'  The  condi- 
tion of  the  above  deed  is  such  that  if  the  said  Rebecca  E.  Bowen 
should  die,  leaving  no  child  or  children,  the  above-described  land, 
or  its  proceeds  that  may  be  realized  by  sale  or  otherwise,  is  to 
fall  back  to  the  lawful  heirs  of  Joseph  Bowen,  Sr.  ;  and  also, 
should  the  guardian  of  the  said  Rebecca  E.  Bowen  see  fit  to  sell 
the  above  land,  he  can,  by  appropriating  the  proceeds  of  the 
sale  to  the  uses  of  the  said  Rebecca  E.  Bowen  while  she  may 
live,  and  then  apply  the  balance,  if  she  should  die  without  heirs 
of  her  body,  to  the  heirs  of  Joseph  Bowen,  Sr."  Subsequent 
to  the  execution  of  the  deed,  the  grantee  was  united  in  marriage 
with  the  appellant  Jose[)h  Outland,  with  whom  she  lived  on  the 
land  conveyed,  until  the  year  1883,  when  she  departed  this 
life,  leaving  siu'viving  her  no  child  or  children.  Her  husl)and 
and  mother  survive  as  her  only  heirs  at  law.  The  piesent  liti- 
gation   involves   a  controversy  between  those  describing  them- 


312  REMAINDERS. 

selves  as  the  lawful  heirs  of  Joseph  Bowen,  deceased,  grantor  in 
the  deed  above  mentioned,  and  the  surviving  husband  and  mother 
of  Rebecca  E.  Bowen,  concerning  the  title  and  ownership  of  the 
land  conveyed  by  the  deed  of  Joseph  Bowen.  The  final  deter- 
mination of  this  controversy  depends  wholly  uj)on  the  construc- 
tion to  be  given  to  the  deed;  it  being  conceded  that  both  parties 
assert  title  through  that  instrument.  The  inquiry  is,  what  was 
the  duration  and  quantity  of  the  estate  created  in  Rebecca  E. 
Bowen,  the  first  grantee,  and  was  there  a  valid  remainder,  or 
estate  of  any  description  limited  over,  to  those  who  now  claim 
as  the  lawful  heirs  of  the  grantor? 

It  is  contended,  on  behalf  of  the  appellants,  that  the  estate 
conveyed  to  the  grantee  named  in  the  deed  was  one  which, 
according  to  the  rules  of  the  common  law,  would  have  been  ad- 
judged an  estate  tail ;  and  that,  since  estates  of  that  description 
have  been  abolished  by  statute  in  this  State  (section  2958,  Rev. 
St.  1881,  in  force  since  May  6,  1853),  it  is  now  to  be  construed 
a  fee-simple  absolute.  Without  pausing  to  consider  the  some- 
times apparently  artificial  refinements,  or  the  numerous  technical 
and  ingenious  distinctions  of  the  common  law  in  respect  to  the 
character  of  estates  in  land,  we  deem  it  suflScient  to  state  our 
general  conclusion  here;  and  that  is  that  the  estate  created  by 
the  deed  in  question,  while  in  many  respects  bearing  some 
analogy  to  an  estate  tail,  was  not  one  having  the  essential  char- 
acteristics of  an  estate  of  that  description.  Ordinarily,  an  estate 
tail  is  created  by  a  conveyance  or  devise  in  fee  to  some  particular 
person,  with  a  limitation  over,  in  the  event  of  the  death  of  the 
person  named  without  issue,  or  upon  an  indefinite  failure  of 
issue.  The  doctrine  of  the  books  seems  to  be  that  whenever  it 
appears  in  the  instrument  creating  the  estate  that  it  was  in- 
tended that  the  issue  of  the  first  taker  should  take  by  in- 
heritance, in  a  direct  line,  and  in  regular  order  and  course 
of  descent,  so  long  as  his  posterity  should  endure,  and  an 
estate  in  fee  or  in  tail  is  given  in  remainder,  upon  an  in- 
definite failure  of  issue,  then  the  estate  first  created  will  be 
construed  to  be  an  estate  tail.  Huxford  v.  Milligan,  50  Ind. 
542;  King  v.  Rea,  56  Ind.  1;  Tipton  v.  La  Rose,  27  Ind.  484  ; 
Shimer  v.  Mann,  99  Ind.  190;  Eichelberger  v.  Barnitz,  9  Watts, 
447;  Pott's  Appeal,  30  Pa.  St.  168;  1  Shars.  &B.  Lead.  Cas.  Real 
Prop.  98.  But  it  is  well  settled,  on  the  other  hand,  that  if  it 
appears  from  the  deed  that  the  limitation  over  was  not  post- 
poned until  an  indefinite  failure  of  issue,  but  on  failure  of  chil- 
dren only,  or  on  failure  of  an  issue  within  a  given  time,  the  estate 
will  not  belong  to  the  class  known  as  estate  tail.  Hill  v.  Hill,  74 
Pa.  St.  173;  "Nightingale  v.  Burrell,  15  Pick.  104;   Allender's 


LIMITATION  OF  A  KEMAINDEIl  AFTER  FEE  UPON  CONDITION.     313 

Lessee  v.  Sussan,  33  Md.  11.  The  deed  under  consideration 
created  in  Rebecca  E.  Bowen  an  estate  in  fee,  which  was  deter- 
minable, however,  upon  the  contingency  that  she  should  die 
leaving  no  child  or  children.  There  is  nothing  in  the  deed  indi- 
cative of  an  intention  to  limit  or  restrain  the  grantee  in  the  dis- 
position of  the  estate,  in  the  event  she  should  leave  surviving 
her  a  child  or  children.  It  left  the  estate  to  be  transmitted  to 
the  child  or  children  of  the  grantee,  if  any  should  survive,  or  to 
the  disposal  l)y  her  in  such  other  manner  as  she  might  determine; 
the  only  limitation  or  condition  being  that  she  leave  surviving  a 
child  or  children.  In  this  respect  the  deed  lacks  an  essential 
element  in  the  creation  of  an  estate  tail.  Moreover,  it  will  be 
observed  that,  according  to  the  conditions  in  the  deed,  if  the 
grantee  died  without  leaving  a  child  or  children,  it  is  of  no  con- 
sequence that  she  may  have  had  children,  through  whom  she  may 
have  left  grandchildren  or  other  lineal  descendants.  The  whole 
estate  was  granted  to  her  in  fee,  but  it  was  made  to  determine  by 
a  limitation  over  in  fee  upon  the  contingency  of  her  death  with- 
out leaving  a  child  or  children.  Upon  the  happening  of  that 
event,  whether  soon  or  late,  the  land,  or,  in  case  that  had 
meanwhile  been  sold  or  otherwise  disposed  of,  then  the  pro- 
ceeds realized,  was  to  vest  in  such  persons,  if  any  there  could 
be,  as  might  at  that  time  occupy  the  relation  of  "  lawful 
heirs  "  to  the  grantor.  The  foregoing  considerations  con- 
firm our  conclusion  that  the  estate  created  in  Rebecca 
E.  Bowen  was  not  one  which,  at  the  common  law,  would 
have  been  adjudged  an  estate  tail.  Of  the  estate  created 
by  the  deed  to  Rebecca  E.  Bowen  we  may  say,  primarily, 
it  was  a  fee-simple  ;  and,  notwithstanding  the  condition  sub- 
sequently written  in  the  deed,  the  estate  was  liable  to  become 
absolute,  and  continue  perpetually  in  the  first  taker,  her  heirs 
and  assigns.  1  Washb.  Real  Prop.  61,  62.  This  created  in  her 
a  fee-simple  conditional,  or  a  fee  of  a  determinable  or  conditional 
character.  Smith  v.  Hunter,  23  Ind.  580;  Clark  v.  Barton,  51 
Ind.  165;  Greer  V.  Wilson,  108  Ind.  322;  9  N.  E.  Rep.  284; 
Tied.  Real  Prop.,  §  26;  Gray  Perp.,  §  40.  It  was  necessary 
that  two  contingencies  should  arise  or  exist  concurrently,  in 
order  that  the  estate  created  might  be  defeated.  One  was  that 
the  grantee  of  the  precedent  estate  should  die  without  leaving  a 
child  or  children  surviving;  the  other  was  that  the  grantor,  prior 
to  that  event,  should  have  died  leaving  lawful  heirs  competent 
to  take  the  estate  limited  over.  Hennessy  v.  Patterson,  85 
N.  Y.  91.  The  land  was  conveyed  in  fee  to  the  first  taker,  and 
it  remained  uncertain  until  her  death  whether  the  estate  con- 
veyed would  be  defeated  by  the  condition  in  the  deed  or  become 


314  REMAINDERS. 

absolute  ;  and  it  could  not  be  known,  until  the  death  of  the 
grantor,  who  would  take  as  his  lawful  heirs.  Since  it  was  doubt- 
ful whether  either  of  these  contingencies  would  happen,  the 
grant  created  a  fee  in  the  grantee,  and  there  remained  in  the 
grantor  no  future  estate  in  reversion,  but  only  what  is  called  a 
naked  possibility  of  reverter.  Tied.  Real  Prop.,  §  385.  In  no 
event  was  the  estate  to  revert  to  the  grantor  or  his  heirs,  so  as 
to  give  them  a  right  of  re-entry  as  for  a  condition  broken. 
The  estate  was  to  be  carried  over  to  the  grantor's  lawful  heirs 
by  the  force  and  effect  of  the  deed.  The  first  taker's  estate  was 
therefore  not  an  estate  upon  condition,  but  it  was  a  conditional 
or  determinable  fee,  with  a  conditional  limitation  over.  The 
essential  difference  between  an  estate  upon  condition  and  an 
estate  in  fee,  which  determines  upon  the  happening  of  some 
future  uncertain  but  possible  event,  with  a  limitation  over,  con- 
ditioned upon  the  happening  of  the  event,  is  that  in  the  latter 
case,  upon  the  happening  of  the  event,  the  estate  either  reverts 
to  the  grantor,  or  is  carried,  by  force  of  the  deed,  to  the  person 
to  whom  it  was  granted;  while  in  the  former  the  grantor  must 
have  either  expressly  or  by  necessary  implication  reserved  to 
himself  or  his  heirs  a  right  of  entry  upon  breach  of  condition  — 
re-entry  being  necessary  to  revert  the  estate.  Attorney-General 
V.  Manufacturing  Co.,  14  Gray,  586.  "  A  conditional  limitation 
is  an  estate  limited  to  take  effect  after  the  determination  of  an 
estate  which,  in  the  absence  of  a  limitation  over,  would  have 
been  an  estate  upon  condition.  Strictly  s})eaking,  a  conditional 
limitation  cannot  be  limited  after  an  estate  ui)<)u  limitation." 
2  Washb.  Real.  Prop.  281,  562;  Tied.  Real  Prop.,  §  281; 
Church  V.  Grant,  3  Grav,  142;  Miller  v,  Levi,  44  N.  Y.  489; 
Chapin  v.  Harris,  8  Allo^i,  594;  1  Shars.  &  B.  Lead.  Cas.  Real 
Prop.  186.  Concerning  estates  upon  conditions  subsequent,  see 
Cross  V.  Carson,  8  Blackf.  138;  the  same  case,  with  invaluable 
note,  44  Amer.  Dec.  742-759.  Conditional  limitations  were  not 
recognized  by  the  common  lavv  as  estates  capable  of  being  created 
by  the  same  deed  with  a  prior  estate  or  limitation.  They  could 
only  be  created,  so  as  to  become  valid  and  effectual,  under  the 
statutes  of  uses  and  trusts,  as  shifting  uses  or  executory  devises. 
Tied.  Real  Prop.,  §§  281,  418. 

The  second  conclusion  at  which  we  have  arrived  is  that  the 
limitation  over  to  the  "  lawful  heirs  "  of  the  grantor  in  the  deed 
in  question,  whether  considered  as  a  conditional  limitation  or  as 
a  contingent  remainder,  is  void,  it  cannot  take  effect  for  several 
reasons,  some  of  which  we  proceed  to  state.  Prior  to  the  con- 
veyance through  which  all  the  parties  to  this  controversy  claim 
title,  the  estate  conveyed  to  Rebecca  E.  Bowen,  as  well  as  the 


LIMITATION  OF  A  REMAINDER  AFTER  FEE  UPON  CONDITION.      315 

remainder  or  contingent  estate  limited  over,  formed  one  united 
estate  in  Joseph  Bowen,  Sr.  The  entire  estate  was  disposed  of 
by  the  deed  ;  there  being  no  reversion  to  the  grantor.  As  we 
have  seen,  the  estate  created  in  the  first  taker  was  not  an 
estate  upon  condition,  with  a  right  of  re-entry  reserved  to 
the  grantor  or  his  heirs,  but  a  determinable  or  conditional 
fee,  with  a  conditional  limitation  or  remainder  over.  There 
was,  therefore,  no  reversion  to  the  grantor,  or  right  of 
entry  in  his  heirs.  They  cannot  and  do  not  claim  as  reversion- 
ers by  inheritance  from  their  ancestor,  but  through  his  deed,  as 
remainder-men,  or  as  the  owners  of  an  estate  created  by  a 
conditional  limitation.  They  claim  to  derive  their  title  through 
the  same  instrument  as  that  through  which  the  heirs  of  Rebecca 
E.  Bowen  claim.  Williams  Real  Prop.  250.  It  must  follow, 
therefore,  if  there  was  no  estate  left  in  the  grantor  aftet  the 
creation  of  the  precedent  trust-estate,  vested  in  the  first  taker, 
he  could  create  no  remainder,  as  a  remainder  can  only  be  created 
out  of  the  estate  left  in  the  grantor  after  the  creation  of  the  par- 
ticular estate.  After  the  conveyance  of  an  estate  in  fee,  whether 
the  fee  be  base,  determinable,  or  conditional,  there  is  nothing 
in  the  nature  of  an  estate  in  the  grantor  out  of  which  to  create 
a  remainder.  It  has  therefore  been  laid  down  as  one  of  the 
fundamental  rules  in  respect  to  the  disposition  of  real  estate  that 
a  remainder  cannot  be  limited  to  take  effect  after  a  fee  ;  or  in 
other  words,  "  where  there  is  no  reversion,  there  can  be  no 
remainder."  Tied.  Real  Prop.,  §  398,  and  cases  cited  in  note; 
Huxford  V.  Milligan,  suijra.  This  rule  has  always  been  held 
inflexible  in  cases  of  estates  created  by  an  ordinary  deed,  and  is 
applied  to  estates  limited  over,  whether  they  be  contingent  re- 
mainders or  conditional  limitations.  Gray  Rest.  Alien.,  §  22, 
and  note.  Its  force  has  been  in  nowise  impaired  or  modified  by 
section  2960,  Rev.  St.  1881,  which  has  reference  solely  to  the 
contingency  upon  which  the  remainder  over  shall  take  eflect, 
and  not  to  the  quantity  or  duration  of  the  precedent  estate.  It 
simply  changes  the  common  law  rule  so  as  to  allow  the 
remainder  over  to  abridge  the  precedent  estate.  The  only 
modification  of  the  rule  in  this  State,  in  respect  to  the  power 
to  limit  one  fee  upon  another,  results  from  the  enactment  of 
section  2962,  which,  among  other  things,  declares  that  "  a 
contingent  remainder  in  fee  may  be  created  on  a  prior 
remainder  in  fee,  to  take  effect  in  the  event  that  the  person 
or  persons  to  whom  the  first  remainder  is  limited  shall  die 
under  the  age  of  twenty-one  years,  or  upon  any  other  contin- 
gency by  which  the  estate  of  such  person  or  persons  may  be 
determined    before    they    attain    their    full   age."     The    estate 


316  REMAINDERS. 

limited  over  in  the  deed  involved  in  the  present  case  does  not 
come  within  the  provisions  of  the  above  statute.  The  first 
estate  was  a  fee,  and  a  limitation  over  was  to  take  effect  at  an 
indefinite  period,  dependinjii;  upon  the  event  of  the  death  of  the 
first  taker  at  an  undefinetl  age.  The  distinction  between  estates 
in  remainder,  such  as  migiit  be  created  by  deed  at  common  law, 
and  executory  interests,  such  as  could  only  be  created  by  exec- 
utory devises  in  wills,  or  by  conveyances  to  uses,  by  creating 
shifting  and  s[)ringing  uses  in  deeds,  is  not  to  be  lost  sight  of. 
Estates  of  the  latter  description  arise,  when  their  time  comes,  of 
their  own  inherent  strength,  and,  when  properly  created,  do  not 
depend  for  protection  on  any  prior  estates.  Church  v.  Grant, 
supra;  Den  v.  Hance,  11  N.  J.  Law,  244  ;  1  Shars.  &  B.  Lead. 
Cas.  Keal  Prop.  151,  189;  Williams  Real  Prop.  265,  283. 
Except  as  authorized  by  the  statute  last  above  referred  to, 
within  the  rule  against  perpetuities,  an  estate  in  fee  cannot  be 
limited  on  estate  in  fee  by  an  ordinary  deed  of  conveyance, 
whether  the  limitation  over  be  in  the  nature  of  a  conditional 
limitation  or  a  contingent  remainder  or  use.  The  creation  of 
estates  of  that  character  requires  a  resort  to  other  methods,  con- 
cerning which  nothing  further  need  be  said  here.  The  rule  that 
a  remainder  in  fee  cannot  be  limited  to  take  effect  after  an  estate 
in  fee  is  especially  applicable  in  case  the  grantee  of  the  prece- 
dent estate  has,  as  is  the  fact  in  the  present  case,  a  general 
power  of  disposition  ;  thereby  leaving  the  limitation  over  to 
operate  only  u[)on  what  is  left  at  the  death  of  the  first  taker. 
In  such  a  case  the  limitation  over  cannot  take  effect  either  as  a 
remainder  or  as  an  executory  interest.  Tied.  Real  Prop.,  §  398, 
and  note. 

The  limitation  over  is  void  for  another  reason.  The  contin- 
gency u))()n  which  the  conditional  limitation  was  to  take  effect 
was  liable  to  happen  at  any  moment  after  the  execution  of  the 
deed.  The  grantor  having  granted  the  whole  estate  in  fee  to  the 
first  taker,  without  reserving  any  estate  to  himself  or  to  any 
other  person,  it  was  necessary  that  there  should  have  been  some 
certain  person  in  being  in  whom  the  contingent  or  conditional 
estate  limited  over  could  vest  immediately  upon  the  happening 
of  the  contingency  which  terminated  the  precedent  estate. 
Shars.  Bl.  Comm,  bk.  2,  pp.  166-169,  and  note.  The  limitation 
over  was  to  be  the  "  lawful  heirs  "  of  Joseph  Bowen,  the  grantor, 
who  was  then  in  life.  As  no  one  can  be  heir  to  the  livine:,  it 
follows  that,  there  was  no  person  in  being  competent  to  take  the 
estate  limited  over.  Moore  v.  Littel,  41  N.  Y.  66  ;  Winslow  v. 
Winslow,  52  Ind.  8;  Lyles  v.  Lescher,  108  Ind.  382;  9  N.  E. 
Rep.  365.     Whether  a  limitation  is  valid   or  not  is  to  be  deter- 


LIMITATION  OT"    A  REMAlNt)EU  ABATER   FEE  UPON  CONDITION.    317 

mined  by  the  deed  alone,  and  not  by  what  might  have  happened, 
or  by  what  actually  did  happen.  When  the  existing  state  of 
things  at  the  time  of  its  execution  is  disclosed,  the  deed  must  be 
left  to  speak  for  itself.  Bailey  v.  Sanger,  108  Ind.  264;  9  N. 
E.  Rep.  159.  It  cannot  be  inferred  that  the  expression  "  lawful 
heirs,"  as  employed  in  the  deed,  was  intended  as  the  equivalent 
of  "  children."  The  situation  of  the  parties  and  circumstances 
tend  to  rebut  such  an  inference.  The  limitation  over  being  void, 
the  estate  of  the  first  taker  continues  unimpaired.  Leonard 
V.  Burr,  18  N.  Y.  96.  The  rule  applicable  to  hxxch.  cases  is  that 
a  conveyance  in  fee  which,  by  a  subsequent  condition,  is  subject 
to  an  executory  interest  or  limitation  which  is  void  by  reason  of 
remoteness,  or  on  account  of  its  being  impossible  or  repuo^nant, 
creates  an  estate  in  the  first  taker  which  becomes  vested  as  a  fee- 
simple  absolute.  Church  v.  Grant,  supra;  Locke  v.  Barbour,  62 
Ind.  577;   Gray,  Perp.,  §  250. 

Another  and  an  independent  reason  why  the  limitation  over  is 
void  and  of  no  effect  is  that  the  deed  confers  upon  the  taker  of 
the  precedent  estate  a  general  and  unlimited  power  of  disposi- 
tion. This  feature  of  the  case  need  not  be  enlarged  upon. 
As  has  been  remarked,  the  deed  created  primarily  an  estate 
in  fee  in  the  grantee,  subject  to  a  condition,  however,  that, 
upon  the  happening  of  a  certain  contingency,  the  land,  "or 
its  proceeds,  that  may  be  realized  by  sale  or  otherwise,  is 
to  fall  back,"  etc.  By  necessary  implication,  this  conferred 
the  power  upon  and  recognized  the  right  of  the  grantee,  on 
arriving  at  the  age  of  twenty-one  years,  to  dispose  of  the 
land.  After  conferring  an  unrestricted  power  of  sale,  the 
attempt  to  hold  onto  or  control  the  proceeds  realized  was  futile. 
Whatever  the  intention  of  the  grantor  may  have  been,  the  power 
of  disposition  was  fatal  to  the  limitation  over,  the  rule  in  such 
cases  being  that  an  absolute  power  of  sale  in  the  first  taker 
renders  a  subsequent  limitation  over  repugnant  and  void.  Gif- 
ford  V.  Choate,  100  Mass.  343;  Hale  v.  Marsh,  Id.  468;  Eams- 
dell  V.  Ramsdell,  21  Me.  288;  Jones  v.  Bacon,  68  Me.  34  ;  Van 
Gorder  v.  Smith,  99  Ind.  404.  This  subject  was  exhaustively 
considered,  and  the  authorities  collected,  in  Van  Horn  v.  Camp- 
bell, 100  N.  Y.  287;  3  N.  E.  Rep.  316,  771.  The  power  in  the 
deed  under  consideration  being  general,  coupled  with  an  ill-de- 
fined and  ambiguous  interest  in  fee,  the  effect  of  the  power  is  to 
raise  the  estate  of  the  first  taker,  and  define  it  as  a  fee-simple 
absolute.  Where  the  estate  of  the  first  taker  is  certain  and  par- 
ticularly defined,  or  where  the  power  is  limited  and  special,  the 
power  will  not  enlarge  the  estate,  as  against  a  valid  limitation 
over.     Some  rules  must,  however,  be  framed  by  which  to  arrive 


318  REMAINDERS. 

at  the  uncertuin  and  ambiguously  expressed  intention  of  parties  ; 
and  as  absolute  power  of  disposition  and  absolute  ownership 
must,  in  the  nature  of  things,  be  inseparably  connected,  the  law 
declares  that  he  to  whom  the  one  is  given  acquires  the  other,  by 
irresistible  implication,  unless  the  contrary  ch^arly  appears  by 
the  terms  of  the  deed.  Van  Gorder  v.  Smith,  supra;  and  cases 
cited.  John  v.  Bradbury,  97  Ind.  263,  was  decided  upon  the 
facts  peculiar  to  that  case,  and  contains  nothing  opposed  to  the 
conclusions  arrived  at  here. 

It  follows  from  the  conclusions  thus  reached  that  the  demurrer 
to  the  complaint  should  have  been  sustained.  The  judgment  is 
therefore  reversed,  with  costs. 


Liiinitations  of   Whatever    Remains    Undisposed  of  by  Prior 
I>evisee  Held  to  bo  a  Good    Remainder. 

Crozier  v.  Bray,  120  N.  Y.  3G6;  24  N.  E.  712. 

Appeal  from  a  judgment  of  the  general  term  of  the  Supreme 
Court  in  the  fifth  judicial  department,  denying  a  motion  by  the 
plaintiffs  for  a  new  trial,  and  directing  judgment  for  the  defend- 
ants upon  a  verdict  rendered  in  their  favor  at  circuit. 

This  was  an  action  of  ejectment,  to  recover  the  possession  of  an 
undivided  interest  in  about  180  acres  of  land  situate  in  the  county 
of  Ontario.  The  land  formerly  belonged  to  one  Luther  Whitney, 
who  died,  seised  thereof,  on  the  19th  day  of  May,  1878,  leaving 
a  last  will  and  testament  dated  February  13,  18G4,  and  a  codicil 
thereto  dated  March  19,  1872.  The  following  are  the  material 
portions  of  said  will:  "After  paying  my  funeral  charges  and 
lawful  debts,  I  give  and  bequeath  to  my  beloved  wife,  Hannah 
L.,  all  personal  property,  such  as  horses,  cattle,  sheep,  swine, 
poultry,  farming  tools,  grain,  hay,  books,  and  household  fur- 
niture, forever.  I  give  and  devise  to  my  wife,  and  my  two 
daughters,  Tasey  and  Harriet  P.,  in  common,  all  my  land  or  reul 
estate,  to  occupy  and  dispose  of  as  they  may  think  proper,  pro- 
vided my  wife  and  my  daughter  Tasey  have  a  comfortable  home 
in  the  house,  together  with  all  the  fuel,  fruit,  and  other  proceeds 
of  the  farm,  to  which  they  will  be  entitled  as  joint  owners :  pro- 
vided, further,  that,  should  my  daughter  Harriet  P.  die  without 
leaving  achildor  children,  her  share  of  my  estate  be  equally  shared 
by  my  wife  and  daughter  Tasey.  Further,  the  land  is  devised  as 
above,  subject  to  the  following  legacies,  which  I  direct  my  execu- 
tors, hereinafter  named,  to  pay  at  or  before  the  expiration  of  four 
years  after  the  death  of  myself  and  wife,  but  without  interest:  I 
give  and  bequeath  to  my  daughter  Cornelia  one  thousand  dol- 


LIMITATION    OF    UNDISPOSED    REMAINDER.  319 

lars,  but  in  case  of  her  death  without  leaving  a  child  or  chil- 
dren, I  will  it  to  my  wife,  and  two  daughters,  Tasey  and  Harriet 
P.,  unless  Harriet  P.  should  die  without  leaving  a  child  or 
children,  in  which  case  I  direct  my  executors  to  pay  it  to  ray 
wife  and  daughter  Tasey.''  The  rest  of  the  will  provided  for 
the  erection  of  a  tombstone  and  named  the  executors.  The 
codicil,  aside  from  a  clause  nominating  a  new  executor  in  the 
place  of  one  who  had  died,  is  in  these  words:  "Whereas,  I, 
Luther  Whitney,  in  Seneca,  of  the  county  of  Ontario  and  State 
of  New  York,  have  made  my  last  will  and  testament  in  writing 
bearing  date  the  13th  day  of  February,  A.  D.  1864,  now,  I  do 
by  this  writing,  which  I  hereby  declare  to  be  a  codicil  to  my  said 
will,  and  to  be  taken  as  a  part  thereof:  I  therefore  will  and 
direct  that  all  that  may  remain  of  the  property  of  my  wife, 
Hannah  L.,  both  real  and  personal,  at  her  decease,  be  made  over 
to  and  become  the  property  of  Cyrus  Bray ;  providing  said 
Cyrus  Bray  should  decease  before  my  wife,  then  the  property 
that  my  wife  should  leave  at  her  decease  shall  be  received  by 
my  two  daughters,  Tasey  and  Harriet  P.,  and  become  their  prop- 
erty and  their  heirs."  The  testator,  who  was  96  years  old  at 
the  time  of  his  death,  had  been  married  twice.  He  left  as  heirs 
at  law  by  his  first  marriage  three  children,  George,  Hannah,  and 
Dolly,  and  one  grandchild,  the  daughter  of  Nathan,  a  deceased 
son.  By  his  second  marriage  he  left  three  daughters,  Cornelia, 
Tasey,  and  Harriet.  Cyrus  Bray  married  Harriet,  and  for 
many  years  lived  with  the  testator  and  worked  the  farm.  The 
second  wife,  Hannah  L.,  died  before  the  testator,  and  she  never 
had  any  property.  While  five  of  the  heirs  at  law  united  in 
bringing  this  action,  only  one  appealed  from  the  judgment  in 
favor  of  the  defendants. 

Vann,  J.  {after  stating  the  facts  as  above).  The  appellant 
claims  that  the  will  gave  an  estate  in  fee  to  the  wife,  Hannah 
L.,  that  the  devise  over  to  Cyrus  Bray  by  the  codicil  is  void  on 
the  ground  of  repugnancy  ;  and  that  by  the  death  of  Hannah  L. 
before  her  husband  the  portion  devised  to  her  lapsed,  and,  as 
there  was  no  residuary  clause,  descended  to  the  heirs  at  law  of 
the  testator.  The  respondents  claim  that  the  will  and  codicil, 
when  construed  together,  show  that  it  was  the  intention  of  the 
testator  that  his  wife  should  take  a  life-estate  only,  with  the 
remainder  over  to  Cyrus  Bray.  The  position  of  each  is  not 
without  the  support  both  of  reason  and  authority,  and  it  is  not 
surprising  that  the  learned  judges  of  the  general  term  did  not 
unite  in  pronouncing  judgment.  While  no  construction  can  be 
given  to  the  will  and  codicil  that  will  satisfy  all  fair  minds  quali- 
fied to  judge  upon  the  subject,  we  will  endeavor,  by  a  careful 


320  feEMATNDKRS. 

analysis  of  the  language  used  by  the  testator,  to  ascertain  what 
ho  meiint  to  do,  and  then  give  effect  to  his  intention  to  the 
utmost  extent  permitted  by  well-settled  rules  of  law. 

By  attaching  the  word  "  forever  "  to  the  gift  of  the  personal 
property,  and  by  the  omission  to  use  that  or  any  word  of  equiv- 
alent meaning  to  tiie  gift  of  tlie  realty  the  testator  may  have 
intended  to  discriminate  between  the  two  gifts  by  making  the 
one  permanent  and  the  other  temporary.  The  intention  to  so 
discriminate  is  strengthened  by  the  use  of  the  word  "  occupy  " 
in  connection  with  the  devise  of  the  real  estate,  but  it  is  weakened 
by  the  provision  that  the  devisees  may  "  dispose  of  "  the  same 
"  as  they  may  think  proper."  Two  provisos  follow  in  direct 
connection,  qualifying  or  limiting  the  gift.  By  the  first  the 
testator  directs  that  his  wife  and  daughter  Tasey  shall  have  a 
comfortable  home  in  the  house.  This  operates  as  a  limitation 
upon  the  gift  to  Harriet,  so  far  as  the  house  is  concerned,  by 
making  it  subject  to  the  right  of  the  other  two  devices  to  have 
a  home  therein.  Such  limitation  is  obviously  confined  to  the 
life-time  of  the  wife  and  Tasey,  or  to  the  period  during  which 
they  would  need  or  could  use  the  house  for  a  home.  The 
remainder  of  the  clause,  to  wit,  "  together  with  all  the  fuel, 
fruit,  and  other  proceeds  of  the  farm  to  which  they  will  be 
entitled  as  joint  owners,"  may  be  a  part  of  the  proviso  or  a  part 
of  the  gift.  If  it  is  a  part  of  the  proviso,  it  does  not  appear  to 
add  to  or  take  from  the  portion  of  any  devisee,  as  the  woral 
"  they  "  in  that  case  would  refer  to  the  wife  and  Tasey,  and  the 
phrase  would  simply  confirm  the  previous  gift  to  them.  If  it  is 
a  part  of  the  gift  itself,  the  word  "they"  refers  to  the  three 
devisees,  and,  while  the  effect  would  be  a  confirmation  of  the 
previous  gift  in  part,  by  naming  the  products  of  the  farm,  it 
would  also  suggest  that  such  gift  was  intended  to  be  a  life- 
estate.  The  term  "joint  owners,"  may  refer  to  the  devisees 
in  either  capacity  as  joint  owners  of  the  fee  or  of  an  estate  for 
life.  By  the  second  proviso  the  testator  directed  that,  in  case 
Harriet  should  die  without  leaving  any  children,  her  portion  of 
the  estate  should  be  equally  shared  by  the  other  two  devisees. 
If  the  reference  to  Harriet's  share  is  for  convenience  of  descrip- 
tion merely,  it  throws  but  little  light  upon  the  main  question  ; 
otherwise  it  would  indicate  that  her  share  was  a  fee  that  he 
desired  to  make  contingent  upon  her  death  without  living  issue. 
The  land  was  devised  "  as  above,"  subject  to  the  payment  of 
certain  legacies  "  at  or  before  the  expiration  of  four  years  after 
the  death  of  "  both  thetestator  and  his  wife,  but  without  interest. 
He  evidently  intended  by  this  clause  to  provide  for  ease  in  the 
payment  of  the  legacies.     While  the  devisees  were  not  directed 


LIMITATION  OF  UNDISPOSED  REMAINDER.  321 

to  pay  them,  the  devise  was  subject  to  the  payment  thereof  by 
the  executors,  who,  for  this  purpose,  were  doubtless  trustees. 
As  there  is  nothiug  in  the  will  indicating  an  intention  to  give  a 
life-estate  to  the  wife,  unless  it  was  also  the  intention  to  give  a 
life-estate  to  each  of  the  other  devisees,  and  as  the  lenfacies 
were  not  payable  until  after  the  death  of  the  wife,  it  follows 
that,  unless  the  devise  was  of  the  fee,  her  share  of  the  devise 
was  practically  freed  from  any  share  in  the  payment  of  the  leg- 
acies. Moreover,  if  the  wife  had  happened  to  be  the  last  sur- 
vivor of  the  three,  it  is  difficult  to  see  how  payment  of  the  leg- 
acies could  have  been  enforced  at  all  unless  the  testator  intended 
to  give  the  land  in  fee.  This  clause,  therefore,  tends  to  support 
the  contention  that  the  devise  was  absolute. 

The  remaining  clause  of  the  will  has  no  bearing  upon  the 
question  presented  for  decision,  except  that  the  gift  over  to  the 
wife,  Tasey,  and  Harriet,  of  the  bequest  to  Cornelia  in  case  of 
her  death  without  issue  surviving,  and  in  the  event  of  Harriet's 
death,  also  without  issue,  to  the  wife  and  Tasey,  when  the  legacy 
was  not  payable  until  after  the  death  of  the  wife,  indicates  a 
want  of  clearness  of  perception  on  the  part  of  the  testator,  and 
prepares  one  who  studies  his  will  to  encounter  inconsistencies. 
The  codicil  is  expressly  made  a  part  of  the  will,  and  shows  a 
change  of  intention  with  reference  to  the  gift  to  the  wife. 
As  she  had  no  property,  the  expression  ''all  that  may  remain 
of  the  property  of  my  wife,"  evidently  refers  to  that  given  her 
by  the  will.  If  the  reference  to  it  is  as  to  property  vested  in 
her  under  the  provisions  of  the  will  as  in  Van  Home  v.  Camp- 
bell, 100  N.  Y.  387;  3  N.  E.  Rep.  316,  771,  the  attempted  gift 
over  of  that  belonging  to  another  would  be  void  for  repugnancy, 
according  to  all  the  authorities.  But  if  it  is  referred  to  as  the 
property  of  the  testator,  and  thus  mentioned  for  convenience 
of  description,  as  in  Norris  v.  Beyea,  13  N.  Y.  273,  275,  the 
gift  would  include  that  only  which  belonged  to  himself,  and 
would  indicate  one  of  two  results,  —  either  a  practical  construc- 
tion of  the  will  as  giving  to  his  wife  a  life-estate  in  the 
real,  and  the  use  during  life  of  the  personal,  property,  or  an 
intent  to  cut  down  the  previous  gift  to  her  by  limiting  it  in 
this  manner.  The  expression  "  all  that  may  remain,"  as  ap- 
plied to  the  personal  property,  would  thus  refer  to  that  which 
had  not  been  used  up,  and,  as  applied  to  the  realty,  to  that  which 
had  been  sold  by  the  wife  under  the  power  of  sale  indicated 
by  the  words  "dispose  of"  in  the  will,  and  "all  that  may 
remain "  in  the  codicil.  Wager  v.  Wager,  96  N.  Y.  164, 
170.  By  a  proviso,  which  follows  immediately,  he  refers  to  the 
property    that   his  "wife  should  have    at   her  decease;"   but 

21 


322  REMAINDERS. 

whether  he  alludes  to  it  us  property  that  would  then  belong  to 
his  wife,  or  to  that  which  ho  had  not  yet  disposed  of,  is  open  to 
the  same  doubt  as  the  former  expression  of  similar  import. 

What  did  the  testator  mean  l)y  the  will  and  codicil,  taken 
together?  For  the  purpose  of  construction,  thoy  should  be 
regarded  as  one  instrument,  except  that  the  making  of  the  codicil 
eight  years  after  the  execution  of  the  will  emphasizes  the  change 
of  intention.  Westcott  v.  Cady,  5  Johns.  Ch.  334;  Willet  v. 
Sandford,  1  Ves.  Sr.  186;  Schouler  Wills,  §§  468,  487;  2 
Jarm.  Wills  (5th  Ed.),  840.  We  think  that  he  intended  to  give 
bis  wife  all  that  she  wanted  to  use  of  the  personal  property,  and 
all  that  she  wanted  to  use  of  one-third  of  the  real  property, 
and  upon  her  death  the  unused  remainder  of  both  to 
Cyrus  Bray.  His  intention,  as  we  gather  it  from  his  language, 
is  the  same  as  if  he  had  said:  *'  I  give  all  my  personal  property 
to  my  wife,  and  all  of  my  real  estate  to  her  and  my  daughters 
Tasey  and  Harriet,  to  occupy  and  dispose  of  as  they  think 
proper,  but  so  much  of  my  wife's  part  as  may  be  left  at  her 
death  I  give  to  Cyrus  Bray."  Clearly,  he  did  not  intend  to  die 
intestate  as  to  the  portion  in  question,  or  that  any  third  person 
should  come  in  between  his  wife  and  Mr.  Bray,  and  take  any 
part  thereof.  He  intended  to  give  that  part  wholly  to  these 
two  persons,  and  to  no  one  else.  If  others  are  allowed  to  share 
in  it,  it  will  be  contrary  to  his  purpose  as  expressed  in  the  will. 
Such  being  his  intention,  can  effect  be  given  to  it?  It  is  not 
so  diflficult  to  ascertain  the  substance  of  his  desii'e  as  it  is  to 
discover  the  method  by  which  he  intended  to  accomplish  it.  If 
he  intended  to  give  one-third  of  the  real  estate  to  his  wife 
absolutely,  and  upon  her  death  the  whole  or  a  part  of  the  same 
property  to  Mr.  Bray,  he  undertook  an  impossibility,  and  the 
attempt  must  be  held  abortive,  as  the  latter  gift  would  be  con- 
tradictory of  the  former,  and  void.  But  a  will  should  not  be 
so  read  as  to  contradict  itself,  if  any  other  reasonable  interpre- 
tation is  possible.  If  it  is  capable  of  two  constructions,  one 
consistent  and  the  other  inconsistent  with  the  law,  the  former 
will  be  preferred,  as  it  is  presumed  that  the  testator  intended  to 
comply  with  the  law.  If  a  will  and  codicil  are  plainly  incon- 
sistent, the  latter  must  control  to  the  extent  necessary  to  give 
it  full  effect,  as  the  presumption  in  such  a  case  is  much 
stronger  than  in  the  case  of  a  later  clause  in  the  same  in- 
strument. While  a  clear  gift  cannot  be  cut  down  by  a 
doubtful  expression,  still,  where  a  predominant  purpose 
is  apparent,  but  a  doubt  arises  as  to  the  method  de- 
vised to  effect  that  purpose,  such  a  doubt  should  be 
so     resolved     as     to   accomplish   the    object   of     the    testator 


LIMITATION    OF   UNDISPOSED    REMAINDER.  323 

by  presuming  that  he  intended  a  legal,  and  not  an  illegal, 
method. 

A{)[)lying  these  rules  of  interpretation,  which  are  elementary, 
to  the  will  and  codicil  in  question,  and  bearing  in  mind  that  in- 
tention is  the  absolute  criterion  of  construction  as  applied  to 
wills,  we  are  led  to  the  conclusion,  although  with  hesitation  and 
difficulty,  that  the  testator  meant,  by  '*  all  that  may  remain  of 
the  property  of  my  wife,"  all  that  might  remain  of  the  property 
that  he  had  provided  for  her  use ;  that  he  did  not  mean  to  give 
to  Bray  property  belonging  to  his  wife,  but  property  belonging 
to  himself  ;  and  that  he  either  construed  the  will  as  giving  her  a 
life-estate,  or  intended  by  the  expression  under  consideration, 
in  connection  with  the  gift  over  to  Bray,  to  effect  that  result. 
Otherwise  the  codicil,  expressing  his  after-thought  and  latest  in- 
tention, must  go  for  naught,  and  that  which  he  intended  to  give 
to  Bray  go  to  those  to  whom  he  intended  to  give  nothing.  While 
the  language  employed  is  not  such  as  would  be  chosen  by  an 
experienced  lawyer  either  to  limit  an  estate,  or  to  allude  to  one 
as  already  limited,  an  inaccurate  use  of  words  cannot  be  allowed 
to  defeat  the  manifest  intention  to  give  to  Bray  what  was  left 
upon  the  wife's  death.  What  could  be  left  for  him  if  all  had 
been  given  to  another?  Yet  something  was  intended  to  be  left, 
either  by  withdrawing  a  part  that  had  been  given  to  the  wife,  or 
by  construing  the  gift  to  her  as  not  constituting  a  fee.  If  he 
had  said,  *'  Whereas,  by  my  will  I  gave  a  life-estate  to  my  wife 
with  power  to  sell,  now,  by  this  codicil,  I  give  that  which  may 
remain  upon  her  decease  to  Cyrus  Bray,"  his  meaning  would 
have  been  plain.  While  in  the  codicil,  as  written,  he  did  not 
expressly  characterize  the  gift  to  his  wife,  we  think  that  he  did 
so  impliedly,  and  treated  it  as  a  life-estate  by  giving  away  the 
remainder.  Moreover,  the  expression  "  all  that  may  remain," 
by  fair  implication  indicates  that  he  intended  that  something 
would  be  left  which  he  had  not  given  to  his  wife,  and  hence 
could  give  to  another.  By  fixing  upon  the  death  of  his  wife  as 
the  contingency  when  the  gift  to  Bray  should  take  effect,  he 
also  pointed  out  the  nature  of  the  provision  for  her,  as  he  under- 
stood it.  In  fine,  unless  we  mock  the  aged  testator  by  reading 
his  words  as  meaningless  or  unlawful,  we  must  conclude  that,  by 
the  will  and  codicil  together,  he  intended  to  give  a  life-estate  to 
his  wife  with  power  to  sell  and,  upon  her  death,  the  remainder 
to  Mr.  Bray. 

We  regard  this  conclusion  as  sustained  by  the  weight  of 
authority,  but  it  must  be  conceded  that  the  decisions  are  not 
uniform.  The  cases  are  so  numerous,  and  the  language  and 
schemes  of  the  wills  considered  therein  so  varied,  as  to  produce 


324  REMAIN'DERS. 

Confusion.  It  is  believed,  however,  th;iL  Ihcy  nil  unite  in  the 
effort  to  give  the  greatest  possible  scope  to  the  dying  owner's 
wishes,  and  that  an  apparent  conflict  arises  from  bending  his 
words  in  one  part  of  the  instrument  so  that  they  will  lit  those 
used  in  another  part,  in  order  to  accomplish  this  result.  When 
the  intent  is  ascertained,  it  is  almost  blindly  followed.  In 
Taggart  v.  Murray,  53  N.  Y.  233,  23(3,  the  court  said  :  "  But 
in  the  construction  of  wills  *  *  *  the  intention  is  to 
be  ascertained  by  the  consideration  of  the  whole  instru- 
ment and  the  construction  is  not  to  be  made  upon  a  single 
or  isolated  clause  detached  from  its  relation  to  those  with  which 
it  is  associated.  If,  on  a  comparison  of  the  different  provisions 
of  a  will,  it  is  found  to  contain  dispositions  which  are  repug- 
nant to  each  other,  then  it  is  the  office  of  judicial  interpretation 
to  preserve,  if  consistent  with  the  rules  of  law,  the  paramount 
intention  of  the  testator  as  disclosed  by  the  instrument, 
although  in  so  doing  it  may  defeat  his  purpose  in  some  sub- 
ordinate and  less  essential  particular.  It  is,  however,  a  primary 
rule  in  the  construction  of  wills  that  effect  is  to  be  given,  if 
possible,  to  all  of  its  provisions,  and  no  clause  is  to  be  rejected, 
and  no  interest  intended  to  be  given  is  to  be  sacrificed,  on  the 
ground  of  repugnancy,  when  it  is  possible  to  reconcile  the  pro- 
visions which  are  sujiposed  to  be  in  conflict.  In  accordance 
with  this  rule,  it  is  held  that  subsequent  clauses  in  a  will  are 
not  incompatible  with  or  repugnant  to  prior  clauses  in  the  same 
instrument,  where  they  may  take  effect  as  qualifications  of  the 
latter,  without  defeating  the  intention  of  the  testator  in  making 
the  prior  gift."  Among  the  authorities  cited  in  support  of 
the  language  quoted  is  Norris  v.  Beyea,  13  N.  Y.  280,  284, 
from  which  the  following  extract  is  taken:  "But  there  is, 
in  truth,  no  repugnancy  in  a  general  bequest  or  devise  to 
one  person  in  language  which  would  ordinarily  convey  the 
whole  estate  and  a  subsequent  provision  that,  upon  a  con- 
tingent event,  the  estate  thus  given  should  be  diverted,  and 
go  over  to  another  person.  The  latter  clause,  in  such  cases, 
limits  and  controls  the  former,  and  when  they  are  read  together 
it  is  apparent  that  the  general  terms  which  ordinarily  convey 
the  whole  property  are  to  be  understood  in  a  qualified,  and 
not  an  absolute,  sense."  In  Terry  v.  Wiggins,  47  N.  Y.  512, 
the  testator,  after  devising  to  his  wife  a  piece  of  real  estate 
"for  her  sole  and  absolute  use  and  disposal,"  devised  to  her 
all  his  other  real  and  personal  estate,  **  for  her  own  personal 
and  independent  use  and  maintenance,  with  full  power  to  sell  or 
otherwise  dispose  of  the  same  in  part  or  in  whole,  if  she  should 
require    it    or    deem  it    expedient   to  do  so;"  and,  after  her 


LIMITATION    OF   UNDISPOSED    REMAINDER.  325 

decease,  "  whatever  residue  there  may  be  of  personal  or  real 
estate  "  ho  gave  to  a  relisrious  society.  It  was  held  that,  by  the 
second  devise  to  the  wife,  she  took  a  life-estate  only,  with  a 
condition:*  1  power  of  disposal  annexed,  which  did  not  operate  to 
enlarge  the  estate  to  a  fee,  and  that  the  limitation  over  was  not 
repugnant,  but  valid.  The  .decision  rested  upon  the  general 
scheme  of  the  will,  and  the  language  was  so  construed  as  to  rec- 
oncile the  different  provisions,  and  give  effect  to  every  part  of 
the  testator's  purpose.  In  Wager  v.  Wager,  1)6  N.  Y.  164,  the 
testator,  after  a  bequest  to  his  wife,  devised  and  bequeathed  to 
his  daughter,  Susie,  all  the  remainder  of  his  real  and  personal  es- 
tate, but  directed  that,  if  Susie  should  die  before  his  wife,  *'all  the 
property,  both  real  and  personal,  that  shall  be  left  by  my  daugh- 
ter at  her  death,"  should  go  to  his  wife.  The  wife  survived  the 
testator,  and  he  survived  his  daughter.  It  was  held  that  the 
gift  to  the  wife,  in  case  she  survived  the  daughter,  was  not 
dependent  upon  the  taking  effect  of  the  primary  gilt  to  the 
daughter  ;  that  while  the  language  employed  in  making  the  latter 
gift  would  generally  import  an  absolute  estate,  yet,  as  such  a 
construction  would  render  inoperative  the  limitation  over,  and 
would  defeat  the  manifest  intent  of  the  testator,  it  was  the  duty 
of  the  court  to  so  construe  as  to  render  the  whole  will  operative, 
and  to  effectuate  the  intent,  and  that  the  widow  was  entitled  to 
the  whole  estate.  Referring  to  the  claim  that  the  provision  for  a 
remainder  to  the  wife  was  void  for  repugnancy,  the  court  says: 
"  There  are  no  words  of  inheritance  or  express  language  used  in 
the  bequest  indicating  an  intention  to  give  an  absolute  estate  to 
the  daughter,  and  such  an  intention  is  inferable  only  from  the 
language  used  in  constituting  the  remainder  for  the  wife,  which, 
by  describing  it  as  that  part  of  the  devised  property  to  be  left  by 
the  daughter  at  her  death,  leaves  it  to  be  implied  that  the  power 
of  disposing  of  it  during  her  life  was  intended  to  be  given  to  her. 
*  *  *  The  language  of  the  provision  under  consideration 
expressly  gives  the  property  therein  described  to  the  wife  solely 
upon  the  contingency  of  the  death  of  the  daughter,  whenever  that 
might  occur,  and  we  think  that  there  is  no  language  used  in  the 
will  indicating  an  intention  on  the  part  of  the  testator  to  make  this 
devise  in  any  way  dependent  upon  the  taking  effect  of  the  first 
devise.  The  entire  contention  of  the  plaintiff  is  based  upon  an 
inference  sought  to  be  drawn  from  language  used  simply  by  way  of 
description,  and  the  attempt  is  thus  made  to  destroy  an  estate,  by 
an  inconclusive  inference,  which  the  express  language  of  the  will 
attempted  to  create.  *  *  *  Xhe  controlling  force,  however, 
which  has  always  been  given  to  the  intent  of  the  testator,  as 
asceitainable    from  the   general   scope  and  tenor  of   the  instru- 


326  REMAINDERS. 

ment,  loquiies  us  to  ascribe  *  *  *  inexactitude  of  expres- 
sion, rather  than  such  a  meaning  aa  will  deleat  the  testator's 
intent.  We  are  of  the  opinion  that,  althouLih  the  hmguagc  em- 
ploved  in  making  the  devise  to  the  (hiui^hter  would  goneraliy 
import  an  absolute  estate  in  the  i)r<)[)erty,  yet  that  cieation  of 
a  limitation  over,  clearly  intended  to  dCny  her  the  power  of  dis- 
posing of  it  by  will,  and  the  force  of  the  testator's  intention,  as 
derived  from  the  provision  for  a  remainder  in  the  wife,  and  the 
scope  and  design  of  its  provisions  generally,  fairly  imply  an 
intention  on  his  part  to  confer  a  life-estate  only  upon  the 
daughter." 

Much  more  of  this  opinion  migliL  be  repealed  as  api)licable  to 
the  case  under  consideration,  including  the  comments  upon 
Campbell  v.  Beaumont,  91  N.  Y.  4(54.  Out  of  the  multitude  of 
authorities  that  might  be  cited  as  applicable,  we  shall  particu- 
larly refer  to  but  one  more  (Smith  v.  Bell,  6  Pet.  68),  in 
which  the  opinion  of  the  court  was  prepared  by  Chief  Jus- 
tice Marshall.  In  that  case,  after  a  specific  bequest,  the 
testator  gave  to  his  wife  all  of  his  "  estate,  whatsoever 
and  wheresoever,  and  of  what  nature,  kind,  and  quality 
soever,  *  *  *  for  her  own  use  and  benefit  and  disposal 
absolutely;  the  remainder  of  said  estate,  after  her  decease,  to 
be  for  the  use  of"  his  son.  The  court  said  :  "  The  first  and 
great  rule  in  the  exposition  of  wills,  to  which  all  other  rules  must 
bend,  is  that  the  intention  of  the  testator  expressed  in  his  will 
shall  prevail,  provided  it  be  consistent  with  the  rules  of  law. 
*  *  *  These  words  [referring  to  the  gift  over  to  the  son] 
give  the  remainder  of  the  estate,  after  his  wife's  decease,  to  the 
son  with  as  much  clearness  as  the  preceding  words  give  the  whole 
estate  to  his  wife.  They  manifest  the  intention  of  the  testator 
to  make  a  future  provision  for  his  son,  as  charly  as  the  first 
part  of  the  bequest  manifests  his  intention  to  make  an 
immediate  provision  for  his  wife.  If  the  first  bequest  is  to  take 
effect  according  to  the  oI)vious  im[)ort  of  the  words  taken 
alone,  the  last  is  expunged  from  the  will.  The  operation  of  the 
whole  clause  will  be  precisely  the  same  as  if  the  last  member  of 
the  sentence  were  stricken  out,  yet  both  clauses  are  equally  the 
words  of  the  testator,  are  equally  binding,  and  equally  claim  the 
attention  of  those  who  may  construe  the  will.  *  *  *  The 
limitation  in  remainder  shows  that,  in  the  opinion  of  the  testator, 
the  previous  words  had  given  only  an  estate  for  life.  This  was 
the  sense  in  which  he  used  them.  *  *  *  But  suppose  the 
testator  had  added  the  words  <  during  her  life.'  These  words 
would  have  restrained  those  which  preceded  them.  *  *  *  if 
this  would  be  true  provided  the  restraining  words  '  for  her  life  ' 


REMAINDER   AFTER    ESTATE    DURING    WIDOWHOOD.  327 

had  been  added,  why  may  not  other  equivalent  words  —  others 
which  equally  manifest  the  intent  to  restrain  the  estate  of  the  wife 
to  her  life  —  be  allowed  the  same  o))cratiou?  The  words,  '  the 
remainder  of  said  estate,  after  her  decease,  to  be  for  use  of  the 
said  Jesse  Goodwin,'  are,  we  think,  equivalent.  They  manifest 
with  equal  clearness  the  intent  to  limit  the  estate  given  to  her  to 
her  life,  and  ought  to  have  the  same  effect.  '  They  are  totally 
inconsistent  with  an  estate  in  the  wife,  which  is  to  endure  beyond 
her  life."  See  also  Colt  v.  Heard,  10  Hun,  189  ;  Greyston  v. 
Clark,  41  Hun,  125  ;  Wells  v.  Seeley,  47  Hun,  109;  Leggett  v. 
Firth,  6  N.  Y.  Supp.  158. 

The  most,  if  not  all,  of  the  cases  relied  upon  by  the  j)laintiff, 
differ  from  that  at  bar  in  one  or  more  of  three  particulars:  (1) 
There  was  no  specific  gift  over  of  the  primary  devise;  (2)  the  gift 
over  w:is  by  a  later  clause  in  the  same  instrument,  if  not  in  the 
same  sentence;  (3)  the  intent  of  the  testator  was  not  clear. 
We  think  that  the  judgment  should  be  affirmed,  with  costs.  All 
concur  except  Bradley  and  Haight,  JJ.,  not  sitting. 


Remainder  After  an  Estate    During  Widowliood. 

Siddons  v.  Cockrell,  131  111.  653;  23  N-  E.  586. 

Appeal  from  circuit  court,  Peoria  County. 

Bill  for  partition,  brought  by  Mary  Siddons,  Theodore  O.  Sid- 
dons, Jackson  L.  Gee,  and  Ida  W.  Gee,  by  her  guardian,  Jackson 
L.  Gee,  against  Nancy  M.  Cockrell,  Arcilus  Cockrell,  Abraham 
L.  Hervey,  Edward  H.  Hervey,  Susan  O.  Nye,  William  Nye, 
Christiana  Foster,  Ellen  Graham,  Charles  Cornwall,  H.  D.  Broer, 
Tinua  Mannott,  Denny  Short,  Alfred  S.  Wilson,  William  Pullen 
and  wife,  James  Pullen,  and  James  P.  Yates. 

ScHOLFiELD,  J.  The  second  clause  of  the  last  will  and  testa- 
ment of  William  Y.  Hervey  reads  as  follows ;  "I  will,  devise, 
and  bequeath  to  my  beloveil  wife,  Nancy  Martha,  during  and  so 
long  as  she  remains  my  widow,  the  net  use  and  control  of  all  the 
real  estate  and  personal  property  of  which  I  may  die  seised, 
wherever  the  same  may  be  situated  or  found,  for  the  purpose  of 
herself  and  my  children.  Should  she  marry,  from  and  after 
such  marriage  she  shall  have  and  control  only  one-third  in  value 
of  the  real  estate,  and  one-third  of  the  personal  property  then 
remaining,  absolute.  Should  she  survive  all  my  children,  they 
having  died  without  issue,  I  will,  devise  and  bequeath  all  my 
i-eal  estate  and  i)ersonal  property  to  be  hers,  her  heirs  and 
assigns,  forever.  But  in  case  of  the  death  of  my  wife,  leaving 
any  of  my  children  surviving,  I  will,  devise,  and  bequeath  to  them 


328  REMAINDERS. 

all  of  my  eslate  in  equal  proportions,  share  and  share  alike;  the 
heirs  of  any  of  my  children  t.ikin<^  their  deceased  patent's  share. 
The  personal  pioperly  1  devise  in  tlio  same  manner  I  have  de- 
vised the  real  estate,  and  subject  to  the  same  order  of  distribu- 
tion." The  testator  was  the  owner  of  several  hundred  acres  of 
valuable  lands,  and  of  a  large  amount  of  personal  property,  at 
time  of  his  death.  Ilis  widow  named  in  the  will,  and  six  chil- 
dren, survived  him.  After  the  death  of  the  testator  the  widow 
nuirried  again.  One  of  the  children  died  in  infancy,  and  before 
the  subse(juent  marriage  of  the  widow.  Another  one  of  the 
children  married,  had  a  child,  who  is  still  living,  boi'n  to  her, 
and  after  the  birth  of  su(;h  child,  and  the  subsequent  marriage  of 
the  widow,  conveyed  to  another  her  interest  in  the  testator's 
real  estate,  and  thereafter  died  intestate.  The  other  children 
are  still  living. 

The  questions  before  the  court  below  were;  (1)  Does  the 
widow  take  a  fee  or  a  life-estate,  after  her  marriage,  in  the 
one-third  then  given  her  in  the  real  estate?  (2)  Was  a  fee 
vested  in  the  children  which  could  pass  by  descent  immediately 
upon  the  death  of  the  testator?  The  court  below  found  that 
the  widow  took  a  life-estate  oidy  in  one-third  of  the  real  estate, 
after  her  marriage,  and  that  a  fee  was  vested  in  the  children 
immediately  upon  the  testator's  death,  which  passed,  upon  the 
death  of  the  child  dying  in  infancy,  and  before  the  subsequent 
marriage  of  the  widow,  to  the  heirs  at  law  of  such  child.  The 
appellant  contests  the  first  of  these  rulings  and  these  appellees 
who  are  children  of  the  testator  contest  the  last.  The  other 
appellees  insist  upon  the  correctness  of  both  rulings. 

1.  Counsel  for  appellant  argue  that  by  the  use  of  the  words 
*'  from  and  after  such  marriage  she  shall  have  and  control  only 
one-third  in  value  of  the  real  estate  and  one-third  of  the  per- 
sonal i)roperty  then  remaining,  absolute,"  the  testator  clearly 
intended  t.o  vest  a  fee  in  the  real  estate  in  his  widow;  that 
"have"  means  ownership:  "from  and  after,"  being  unlimited 
or  qualified  by  other  words,  mean  "  thenceforth  forever;  "  and 
that  "absolute"  refers  to  both  the  real  and  the  personal 
estate,  and,  applied  to  the  real  estate,  means  a  fee-simple,  in 
contradistiiiction  to  a  life-estate.  If  nothing  but  these  words 
were  to  be  considered  in  connection  with  the  devises,  there 
would  be  much  force  in  the  argument.  But  the  familiar  rules 
of  construing  wills  require,  if  it  can  be  necessarily  given, 
such  a  construction  as  shall  give  force  and  effect  to 
every  word  and  clause,  and,  if  a  prior  and  a  subsequent 
clause  are  repugnant,  that  the  prior  clause  shall  be  restrained 
or  modified  by   the   subsequent  clause.     Walker  v.  Pritchard, 


REMAINDER  AFTER  ESTATE  DURING  WIDOWHOOD.  329 

121  111.  221;  12  N.  E.  Rep.  336.  It  will  be  observed  that,  in 
cliuises  subsequent  to  that  referred  to  and  relied  upon  by  the 
counsel,  the  testator  assumes  to  devise  all  of  his  real  estate  in 
fee  to  his  chikiren  or  to  his  widow.  It  is,  of  course,  impossible 
to  give  one-third  of  his  real  estate  in  fee  to  his  wife,  and  all 
of  his  real  estate  in  fee  to  his  children  ;  and  yet  the  word 
"  all,"  in  this  connection,  is  unqualified,  expressly  or  im[)liedly, 
by  any  modifying  word.  But  a  devise  of  land,  without  the  use 
of  the  word  "  heirs,"  or  other  words  necessary  dt  common  law 
to  pass  a  fee,  is  only  to  be  construed  as  a  devise  of  a  fee  when 
it  does  not  appear  from  the  entire  will  that  a  less  estate  was  in- 
tended (Walker  v.  Pritchard,  supra)  \  and  since  it  could  not 
have  intended  to  devise  by  the  subsequent  clause  what  was  de- 
vised by  the  prior  clause,  and  the  language  of  the  subsequent 
clause  has  preference  in  determining  what  is  devised  by  that 
clause,  it  must  have  been  intended  by  the  first  clause  to  devise 
a  life-estate,  as  between  a  devise  of  which,  and  of  a  fee  in  the 
same  land,  there  is  no  necessary  repugnance.  It  will  also  be 
further  observed  that  the  testator  in  the  first  clause  uses  the 
language,  *' she  shall  have  and  control,"  but  in  the  subsequent 
clause  he  uses  the  language,  "  devise  and  bequeath  all  my  real 
estate,  *  *  *  to  be  hers,  her  heirs  and  assigns,  forever." 
This  change  of  phraseology  plainly  shows  that  what  was  in- 
tended by  the  latter  was  different  from  that  intended  by  the 
former,  and  that  the  testator  knew,  and  had  in  his  mind  at  the 
time,  what  language  to  use  to  devise  a  fee  so  that  his  meaning 
could  not  be  misunderstood.  The  meaning  of  the  word  "  abso- 
lute "  in  the  connection  in  which  it  occurs,  in  our  opinion,  has 
reference  to  the  personal  property  only,  and  was  not  intended 
to  be  descriptive  of  the  real  estate. 

The  widow  might,  had  she  so  elected,  have  renounced  under 
the  will,  and  have  taken  the  interest  in  the  testator's  estate  that 
she  would  have  taken  had  he  died  intestate,  namely,  dower  in 
the  lands  (section  1,  c,  41,  Rev.  St.  1884),  and,  *'as  her  abso- 
lute personal  estate,  one-third  of  all  the  personal  estate" 
(clause  4,  §  1,  c.  39,  Rev.  St.  1874).  And  it  is  fairly  to  be  in- 
ferred that  the  testator  intended  that  if  his  widow  married  again 
she  should  have  oi)ly  what  she  would  have  taken  under  the  law 
if  he  had  made  no  will,  or  what  she  would  have  taken  under  the 
law  by  renouncing  under  his  will,  and  in  spite  of  his  will.  Such 
provisions  are  presumably  intended  to  discourage  rather  than  to 
invite  subsequent  marriages;  and  it  would  therefore  be  unrea- 
sonable to  assume  that  the  word  "  absolute"  was  here  intended 
to  express  the  idea  of  a  conveyance  of  real  estate  in  fee  so  long 
as  any  other  rational  meaning  can  be  assigned  to  it. 


330  REMAINDER. 

There  is  another  view  that  we  think  might  well  bo  taken  of 
the  intention  in  using  that  word.  The  use  and  control  given  of 
the  property  devised  before  subsequent  marriage  is  expressed  to 
be  for  the  supportof  the  widow  and  the  testator's  children,  but  the 
property  given  to  her  afterwards  is  for  herself  alone;  and  so  the 
word  •'  absolute  "  may  reasonably  be  held  to  express  that  idea, — 
the  unrestricted,  i.  e.,  absolute,  tise  by  the  widow,  for  herself, 
in  contradistinction  to  the  former  joint  use,  for  herself  and  the 
testator's  children.  The  words  "  from  and  after  "  imply  futur- 
ity, "  indefinitely,"  simply,  and  are  clearly  restricted  by  the 
purpose  of  the  devise  as  manifested  by  the  entire  will. 

2.  In  the  absence  of  a  clearly  manifesteii  intention  to  the  con- 
trary, it  must  be  presumed  that  the  testator  intended  to  dispose 
of  all  his  estate.  So,  also,  the  heir  at  law  is  not  to  be  dis- 
inherited unless  the  intent  to  do  so  is  very  clearly  expressed.  1 
Redf.  Wills,  §  18,  p.  434.  The  devise  of  the  use  and  control  of 
the  real  estate  being  in  effect  a  devise  of  the  real  estate  itself, 
the  devise  in  the  first  instance  was  of  a  life-estate,  determinable, 
however,  as  to  two-thirds  thereof,  upon  the  subsequent  marriage 
of  the  widow  (1  Prest.  Est.  442);  and  there  was  a  reversion 
still  left  in  the  testator  to  be  devised  (Tied.  Real  Prop.,  §  386  ; 
State  V.  Brown,  27  N.  J.  Law.  20;  McKelway  v.  Sey- 
mour, 29  N.  J.  Law,  329).  The  devise  of  the  reversion 
in  the  two-thirds  of  the  real  estate,  in  the  event  of  the  sub- 
sequent marriage  of  the  widow,  would  therefore  have  to 
take  effect  immediately  upon  such  marriage ;  and  we  must 
assume  that  the  testator  intended  that  it  should  then  take 
effect.  But  there  is  nothing  in  the  language  of  the  will  that 
warrants  the  conclusion  that  the  title  devised  was  intended  to  be 
vested  at  different  times,  although  the  enjoyment  of  one-third 
of  the  estate  is  postponed  until  after  the  death  of  the  widow 
The  will  should  therefore  be  read  as  follows,  after  the  devise  to 
the  widow :  "  I  devise  all  my  remaining  real  and  personal  estate 
to  my  children;  and  if  any  children  be  dead,  leaving  children 
surviving  them,  then  to  them,  also,  the  children  of  a  deceased 
child  taking  the  part  of  their  parent.  But  if  all  ray  children 
shall  die,  without  issue,  before  my  wife  shall  die,  I  devise  the 
same  to  her."  The  estate  devised  is  clearly  intended  to  be  a 
fee-simple  in  whomsoever  shall  take.  The  title  was  intended  to 
vest  immediately  upon  the  death  of  the  testator,  and  so,  neces- 
sarily, he  must  have  intended  children  or  children's  children  in 
being  at  his  death;  and  the  deaths  contemplated  were  neces- 
sarily deaths  in  the  life-time  of  the  testator.  Briggs  v.  Shaw, 
9  Allen,  516;  Fulton  v.  Fulton,  2  Grant  Cas.  28;  Moore  v. 
Lyons,  25  Wend.  119;  Freeman  v.  Coit,  96  N.  Y.  68.  We  find 
no  error  in  the  record.     The  judgment  is  affirmed. 


FUTURE    ESTATE    SUBJECT   TO    GUANTOU'S    LIFE    ESTATE.      331 

Future  Estate   Subject   to  Life  Estate   Reserved  to    Grantor 
Held  to  I5e  a  Vested  llemaiuder. 

Hitchcock  V.  Sirapkins,  99  Mich.  198;  58  N.  W.  47. 

HooKEK,  J.  The  complainant's  bill  was  filed  for  the  fore- 
closure of  a  real  estate  mortgage  for  $60  given  by  Abraham 
Percival  to  William  Snowden  on  February  1,  1883,  and  by 
Snowden  assigned  to  the  complainant.  The  bill  alleges  that  on 
January  29,  1881,  said  Percival  executed  and  acknowledged  a 
deed  of  said  premises  to  his  son,  Richard  W.  Percival,  which 
was  subject  to  certain  provisions  and  conditions  therein  con- 
tained, under  which  deed  defendant  Simpkins  claims  title  by 
purchase  from  the  younger  Percival,  and  Brown  is  a  subsequent 
mortgagee  from  Siiii|)kins.  The  bill  states,  further,  that  the 
deed  from  Abraham  Percival  was  voluntary,  and  was  not  accom- 
panied or  followed  by  a  change  of  possession  until  after  the 
death  of  Abraham  Percival ;  that  it  was  testamentary  in  its  char- 
acter, and  passed  no  title.  It  is  also  alleged  that  these  defend- 
ants are  not  purchasers  in  good  faith. 

The  proofs  show  that  on  January  29,  1881,  Abraham  Percival 
lived  upon  the  premises  with  one  Elizabeth  Armstrong,  whom  he 
boarded  and  clothed  for  her  services  as  housekeeper.  Richard 
W.  Percival  was  his  only  child,  and  he  was  living  abroad.  He 
aided  his  father  by  contributions  of  money,  and  in  1880  he  spent 
some  time  at  Pontiac,  and  made  an  arrangement  to  pay  him 
$100  a  year,  upon  condition  that  his  father  should  give  him  a 
deed  of  the  place.  The  deed  was  executed,  and  contains  the 
stipulation  agreed  upon.  It  was  an  ordinary  warranty  deed, 
with  the  following  language  inserted  immediately  after  the 
description  of  the  premises,  viz.:  "Subject,  however,  to  the 
following  payments,  conditions,  limitations,  and  uses,  to  wit: 
First.  The  said  party  of  the  first  part  is  to  remain  in  the  full 
possession,  control,  and  occupancy  of  said  above-described  lands 
for  and  during  the  period  of  his  natural  life,  enjoying  the  same, 
together  with  the  rents  and  profits  arising  therefrom,  as 
fully  and  freely  as  though  this  deed  had  not  been  exe- 
cuted. Second.  That  said  party  of  the  second  part  will 
pay  or  cause  to  be  paid,  to  the  party  of  the  first  part,  the 
sum  of  one  hundred  (100)  dollars  each  and  every  year  for  and 
during  the  remainder  of  the  natural  life  of  the  said  party  of 
the  first  part,  which  he  hereby  agrees  to  do.  But  at  the  death 
of  the  said  party  of  the  first  part  the  title  shall  be,  and  is  hereby 
declared  to  be,  in  the  saitl  party  of  the  second  part,  subject  to 
the  further  limitation  [then  follow  like  provisions  as  to  Mrs. 
Armstrong,  providing  she  continued  to  his  decease  as  his  house- 


332  KEMAINDERS. 

keeper].  Fourth.  That  in  case  the  said  party  of  the  second 
part  shall  refuse  or  neglect  to  pay,  or  cause  to  be  paid,  said 
sum  or  sums  of  money,  as  aforesaid,  or  to  perform  any  and  all 
the  conditions  hereinbefore  mentioned,  then  and  in  that  case  this 
deed  shall  be  null  and  void  ;  otherwise  to  be  and  remain  in  full 
force  and  effect."  This  deed  was  duly  recorded  before  the  ex- 
ecution of  complainant's  mortgage.  The  annuity  of  $100 
appears  to  have  been  regularly  paid.  It  is  shown  that  on  Feb- 
ruary 1,  1883,  Abraham  Percival  borrowed  $60  from  Suowden, 
giving  the  mortgage  sought  to  be  foreclosed.  Suowden  and 
another  say  that  he  said  at  that  time  that  he  had  been  disap- 
pointed in  getting  some  money  that  he  had  ex[)ected  from  his 
son.  Snowden  went  to  the  register's  office,  and  was  told  that 
the  title  was  *'  All  right,"  and  closed  the  transaction.  In  May, 
1883,  he  was  paid  $25  upon  the  mortgage  by  the  mortgagor. 
He  kept  it  until  1890  without  effort  to  collect,  so  far  as  appears, 
and  then  assigned  it  to  complainant.  Early  in  1880,  Abraham 
Percival  died,  this  event  having  been  preceded  by  the  death  of 
Mrs.  Armstrong.  Richard  W.  Percival  went  into  the  possession 
upon  the  death  of  his  father,  and  subsequently  sold  the  prem- 
ises to  Simpkins,  who  mortgaged  to  Brown  for  $800,  using  the 
money  to  build  upon  the  premises. 

The  appellant's  counsel  contends  that  the  instrument  given  by 
Abraham  Percival  to  his  son  was  inoperative  to  convey  title, 
and  was  no  more  than  a  devise,  subject  to  revocation  by  the 
deceased,  and  that  the  complainant's  mortgage  revoked  it.  The 
test  is  the  time  when  the  instrument  was  designed  to  take  effect. 
If  it  conveyed  a  present  interest  though  of  a  future  estate,  the 
title  was  vested.  If,  on  the  contrary,  it  was  to  take  effect  only  at 
the  death  of  the  maker  of  the  instrument,  it  was  testamentary  in 
character,  and  could  only  operate  as  a  will,  if  of  any  force  at  all. 
In  the  language  of  a  writer  upon  wills;  "  If  a  man,  by  deed, 
limit  lands  to  the  use  of  himself  for  life,  with  remainder  to  use 
of  A.,  the  etfect  upon  the  usufructuary  enjoyment  is  precisely 
the  same  as  if  it  should,  by  his  will,  make  the  immediate  devise 
of  such  lands  to  A.  in  fee  ;  and  yet  the  case  fully  illustrates 
the  distinction  in  question,  for  in  the  former  instance  A. 
immediately  on  the  execution  of  the  deed  becomes  entitled 
to  the  remainder  in  fee,  though  it  is  not  to  take  effect  in 
possession  until  the  decease  of  the  settler,  while,  in  the 
latter,  he  would  take  no  interest  until  the  decease  of  the 
testator  should  have  called  the  instrument  into  operation." 
Jarm.  Wills,  p.  18,  and  cases  cited;  Schouler,  Wills,  §§  265, 
266,  and  notes;  Habergham  v.  Vincent,  2  Ves.  Jr.  230;  19 
Cent.  Law  J.  46,  47  ;  Leaver  v.  Gauss  (Iowa),  17  N.  W.  522  ; 


FUTURE   ESTATE    SUBJECT   TO    OUANTOr's    LIFE    ESTATE.       333 

Turner  v.  Scott,  51  Pa.  St.  132;  S|)erh(u-  v.  Blaster,  Ufi  Ga.  317. 
The  prt'sent  case  must  tuin  upon  the  ctlect  of  the  words,  "  But 
at  the  death  of  the  said  party  of  tlie  first  part  the  title  shall  be, 
and  is  hereby  declared  to  be,  in  said  party  of  the  second  part, 
subject,  however,  to  further  limitation,"  etc.  It  is  contended 
tliat  these  words  indicate  an  intention  that  no  title  sliould  vest 
in  the  son  until  the  death  of  his  father.  Among  the  many  au- 
thorities cited  by  the  counsel  for  the  complainant  are  three 
Michigan  cases,  which  we  think  in  harmony  with  the  rule  stated. 
Bigley  v.  Souvey,  45  Mich.  370,  may  be  passed  with  the  remark 
that  the  deed  in  question  slates  that  "  the  conveyance  of  land 
herein  named  shall  be  and  continue  the  property  of  the  first 
party  during  his  lifetime,  and  the  remainder  to  said  second  party 
immediately  at  the  death  of  said  first  party."  In  Re  Lauten- 
shlager,  80  Mich.  285;  45  N.  W.  147,  a  deed  was  admitted  to 
probate  as  a  will,  and  the  judgment  was  affirmed  upon  the  finding 
of  fact  that  it  was  to  become  operative  at  death.  In  Schuffert 
V.  Grote  (Mich.),  50  N.  W.  (j57,  a  deed  was  niade  and  delivered 
to  a  son  with  the  remark  that  the  father  wished  him  to  have  the 
lots  described  after  his  death.  It  was  immediately  handed 
back  to  the  father,  who  kept  it  for  a  couple  of  years,  and 
then  destroyed  it.  It  was  held  that  the  title  did  not  pass,  and 
that  it  was  subject  to  revocation  by  destruction.  None  of  these 
cases  go  further  than  to  hold  that,  where  the  title  does 
not  at  once  vest,  the  instrument  is  subject  to  revocation.  In 
the  present  case  the  deed  was  based  on  a  valuable  consideration, 
the  payment  of  which  was  made  one  of  the  conditions.  The 
deed  was  delivered  and  recorded,  and  remained  in  the  hands  of 
the  grantee,  who  performed  all  the  conditions  required  by  the 
deed  so  far  as  this  record  shows.  While  it  is  true  that  the 
mortgagee  testified  that  Abraham  Percival  said,  at  the  time  he 
made  complainant's  mortgage,  that  he  had  been  disappointed  in 
getting  money  from  his  son,  he  did  not  say  that  it  was  due  by 
the  terms  of  this  deed,  and  this  testimony  was  hearsay  at  best. 
Complaiuiint  makes  no  such  point  in  his  brief,  and,  if  he  did, 
there  is  no  proper  evidence  to  support  it.  The  deed  contains 
the  language  usual  to  a  present  conveyance,  and  all  the  circum- 
stances show  that  the  intention  was  to  place  this  property  where 
it  would  be  secured  to  the  son,  who  assumed  the  burden  of  the 
support  of  his  father  and  the  housekeeper.  We  think  that 
the  language  mentioned  was  not  designed  to  defer  the  time 
when  the  title  should  vest,  but  thiit  the  son  took  a  vested  re- 
mainder subject  to  the  condition  mentioned.  Had  the  grantor 
intended  this  as  a  testamentary  disposition,  a  slight  change  in 
the  language  used  would  have  expressed  it.     We  think  it  more 


334  REMAINDERS. 

reasoniiblo  to  hold  that  iheso  words  meant  that  at  death  the  son's 
estate  should  become  complete,  except  as  it  was  by  that  claim 
further  sul>ject  to  an  obligation  to  provide  for  the  housekeeper 
if  still  living.  The  deed,  being  on  record,  was  notice  to  the 
world  of  the  son's  rights,  and  complainant's  mortgage  must 
yield  to  his  superior  title.  The  decree  of  the  circuit  court,  dis- 
missing the  bill,  will  be  affirmed  with  costs.  The  other  justices 
concurred. 

NoTH.  —  The  future  estate,  described  in  the  case  of  Hitchcock 
V.  Simpkins,  would,  at  common  law,  and  independent  of  modern 
law,  bo  more  properly  described  as  a  springing  use,  executed 
into  a  legal  estate  by  the  statute  of  uses.  Indeed,  in  no  other 
way  could  such  an  estate  bo  validly  executed,  independently  of 
the  statute,  and  since  the  deed  in  the  present  case  could  operate 
as  a  conve3'ance  under  the  statute  of  uses,  a  covenant  io  stand 
seised  or  a  bargain  and  sale,  the  practical  result  of  the  decision 
was  correct. 


Remainder  to  a  Class  When  Contingent. 

Coxey  V.  Springer,  138  Ind.  50G;  37  N.  E.  506. 

Dailey,  J.  This  action  involves  the  construction  of  the  last 
will  of  Gabriel  Springer,  deceased.  Said  Gabriel  Springer  died 
testate  in  1871,  leaving  as  his  only  heirs  at  law  his  wife,  Hannah 
Springer,  his  son  John  J.  Springer,  and  his  two  daughters,  Nancy 
J.  Miller  and  Sarah  Bromlett.  John  J.  Springer  died  testate, 
in  Rush  County,  Ind.,  on  December  25,  1891,  leaving  neither 
wife  nor  issue  surviving  hira.  Nancy  J.  Miller  died,  leaving  Os- 
car Miller  and  Roy  H.  Miller,  her  only  children  and  heirs  at  law, 
surviving.  Sarah  Bromlett  died,  leaving  her  childron.  Perry  F. 
Bromlett,  Wesley  F.  Bromlett,  and  Jesse  T.  Bromlett,  defendants 
herein,  surviving.  The  widow,  Hannah  Springer,  still  survives, 
and  since  testator's  death  has  remained  unmarried.  The  appel- 
lant, as  executor  of  the  last  will  of  John  J.  Springer,  deceased, 
filed  his  petition  in  the  Rush  circuit  court  to  sell  certain  real 
estate  embraced  in  the  will  of  Gabriel  Springer,  deceased,  to  pay 
the  debts  of  the  testator  John  J.  Si)ringer,  to  which  petition  the 
appellees  are  parties  defendant.  The  defendants  Oscar  Miller 
and  Roy  H.  Miller,  by  their  guardian  adlitem  William  J.  Hanley 
and  Perry  F.,  Wesley  F.,  and  Jesse  T.  T.  Bromlett,  by  their 
guardian  ad  litem.  Lot  D,  Guffin,  have  filed  their  answers  thereto, 
setting  up  the  will  of  said  Gabriel  Springer.  The  controversy 
which  arises  upon  demurrer  to  the  answer  is,  what  was  the  nature 
of  the  estate  devised  by  said  Gabriel's  will  to  John  J.  Springer, 


REMAINDER    TO    A    CLASS    WHEN    CONTINGENT.  335 

appellant's  testator?  The  items  of  the  will  which  call  for  con- 
struction are  the  third  and  fourth.  They  are  as  follows; 
"Item  Third.  It  is  my  will,  after  the  payments  aforesaid 
are  made,  and  after  the  expenses  of  administration  are  all  paid, 
that  my  wife,  Hanna  Springer,  if  she  shall  survive  me,  and  re- 
main my  widow,  shall  have  the  use  of  all  the  remainder  of  my 
estate,  both  real  and  personal,  during  her  lifetime,  and  I  accord- 
ingly bequeath  the  same  to  her  as  aforesaid,  to  be  kept  and  used 
by  her,  during  the  time  of  her  natural  life,  if  she  so  long  re- 
main my  widow;  but,  in  case  of  .her  marriage  after  my  decease, 
this  provision  of  my  will  to  be  void  and  to  be  of  no  effect,  and 
in  that  case  I  desire  that  she  take  out  of  my  estate,  real  and 
personal,  only  such  provision  as  the  laws  of  the  State  of  Indiana 
make  for  widows  at  the  time  of  my  death.  Item  Fourth.  At 
the  death  of  my  wife,  if  she  shall  not  marry  again,  I  bequeath 
all  my  property,  share  and  share  alike,  to  my  children.  If  any 
of  my  children  shall  be  dead  at  the  time  of  such  distribution  or 
disposition,  leaving  children,  such  children  are  to  take  the  share 
of  their  deceased  father  or  mother,  as  the  case  may  be.  In 
ease  my  wife  should  again  marry,  and  so  take  the  provision 
herein  made  for  her,  in  that  event,  under  the  law  of  Indiana,  I 
bequeath  the  remainder  of  my  estate,  real  and  personal,  to  my 
children,  and  to  the  representatives  of  such  as  may  be  dead,  if 
any,  as  providedin  the  former  part  of  this  will."  As  we  under- 
stand the  contention,  appellant  insists  that  by  the  terms  of  the 
will  the  widow,  Hanna  Springer,  took  an  estate  for  life  in  the 
lands  in  controversy,  and  that  a  remainder  in  fee  vested  in  Gabriel 
Springer's  children,  of  whom  John  J.  Springer  was  one,  and 
that  such  remainder  in  fee  vested  absolutely  and  unconditionally 
in  said  John  at  the  time  of  his  father's  death.  Appellees  as- 
sume, U[)on  the  contrary,  viewing  the  matter  aside  from  the  at- 
tempted limitation  concerning  or  with  respect  to  marriage,  that, 
after  carving  out  a  life  estate  for  his  widow,  it  was  the  manifest 
intention  of  the  testator,  by  the  terms  of  his  will,  to  give  to 
his  children  living  at  her  death,  and  to  the  descendants  of  such 
as  were  then  dead,  a  vested  remainder;  that  the  testator  ap- 
pointed a  fixed  time  when  the  conditional  fee  should  ripen  into 
an  absolute  fee  in  his  children  —  a  time  when  the  division  or 
distribution,  as  he  styles  it,  should  take  place,  —  and  that  time 
was  fixed  at  the  death  of  the  widow.  As  opposed  to  the  theory 
that  John  J.  Springer  took  an  absolute,  unalterable,  and  uncon- 
ditional fee  at  the  time  of  the  testator's  death,  it  is  maintained 
by  the  appellee  that  the  remainder  over  to  him  at  the  time  of 
the  testator's  death  was  only  in  the  nature  of  a  vested  remainder; 
that  it  was  alterable,  conditional,    and    limited;    and  that    the 


336  REMAINDERS. 

time  fixed  by  the  testiitor  himself  for  its  ripening  into  a  certain 
and  absolute  fee  simph!  was  at  the  event  of  tlie  widow's  death. 
In  our  opinion  the  controversy  in  this  case  does  not  dcfieiid  ui)on 
a  solution  of  the  question  whether  the  remainder  to  the  son  was 
a  vested  or  a  contingent  one.  It  is  not  contended  by  the  appel- 
lees that  the  remainder  to  him  was  contingent  in  tiie  technical 
sense  of  the  term.  The  test  as  to  whether  an  estate  is  vested  or 
contingent  is  this:  "  The  right  and  capacity  of  the  remainder- 
man to  take  possession  of  the  estate  if  the  possession  were  to 
become  vacant,  and  the  certainty  that  the  event  upon  which  the 
vacancy  depends  must  hai)i)en  some  time,  and  not  the  certainty 
that  it  will  happen  in  the  lifetime  of  the  remainder-man,  deter- 
mine whether  or  not  the  estate  is  vested  or  continirent."  Bruce 
V.  Bissell,  119  Ind.  525,  on  page  530  ;  22  N.  E.  4,^citing  Croxall 
V.  Shererd,  5  Wall.  268  ;  Tied.  Real  Prop.,  §  401.  These  author- 
ities establish  the  doctrine  that  an  estate  in  remainder  is  not 
rendered  contingent  by  the  uncertainty  of  the  time  of  enjoyment. 
•'  It  is  the  uncertainty  of  the  right  that  renders  an  estate  con- 
tingent, and  not  the  uncertainty  of  the  enjoyment."  Wood  v. 
Robertson,  113  Ind  ,  on  page  325;  15  N.  E.  457.  In  the  con- 
struction of  wills  it  is  a  familiar  rule  that  the  intention  of  the 
testator  must  prevail.  Wood  v.  Robinson,  113  Ind.,  on  page 
326  ;  15  N.  E.  457.  The  fundamental  rule  in  the  construction 
of  wills  is  that  the  intention  of  the  testator,  if  not  inconsistent 
with  some  established  rule  of  law,  must  control.  Jackson  v. 
Hoover,  26  Ind.  511;  Butler  v.  Mcore,  94  Ind.  359;  Nading  v. 
Elliott  (decided  by  this  court  on  March  6,  1894),  36  N.  E.  695. 
Courts,  in  giving  an  interpretation  to  a  will,  may  place  them- 
selves in  the  situation  of  the  testator,  examine  the  surroundings, 
and  then,  from  the  language  used,  arrive  at  his  intention.  Jack- 
son V.  Hoover,  26  Ind.  511;  Price  v.  Price,  80  Ind.  90. 

In  the  light  of  these  rules  it  is  proper  to  consider  the  lan- 
guage employed  by  the  testator,  and  ascertain  its  force  and 
significance.  Aside  from  the  provisions  made  in  the  event  of 
the  widow's  marriage,  the  third  item  in  the  will  devises  an 
estate  for  life  to  his  widow.  The  fourth  item  then  reads:  "  At 
the  death  of  my  wife,  I  bequeath  all  my  property,  share  and 
share  alike,  to  my  children.  If  any  of  my  children  shall  be 
dead  at  the  time  of  such  distribution  or  disposition,  leaving 
children,  such  children  are  to  take  the  share  of  their  deceased 
father  or  mother,  as  the  case  may  be."  Here  the  testator  in 
language  clear  and  unmistakable  as  could  be  employed,  fixes  the 
time  for  '*  such  distribution  "  or  final  disposition  to  occur,  viz  , 
**  At  the  death  of  his  widow."  Until  this  event  shall  happen, 
he  holds  the  fee  conditional  and   in  abeyance,  subject  to  alter- 


REMAINDER   TO    A    CLASS    WHEN    CONTINGENT.  337 

ation,  and  only  to  ripen  and  fasten  absolutely  in  his  children 
surviving  at  the  death  of  his  unmarried  widow.  Appellant's 
counsel  state  the  rule  correctly,  that,  "The  law  favors  vested 
estates,  and  remainders  will  never  be  held  to  be  contingent 
when  they  can  consistently  with  the  intention  of  the  testator, 
be  held  to  be  vested.  Words  of  survivorship,  generally,  in 
the  absence  of  an  expressed  or  implied  intention  to  the  con- 
trary, are  construed  to  refer  to  the  testator's  death."  Boling 
V.  Miller,  133  Ind.  602;  33  N.  E.  354;  Davidson  v.  Bates,  111 
Ind.  391  ;  12  N.  E.  687  ;  Harris  v.  Carpenter,  109  Ind.  540;  10 
N.  E.  422;  Davidson  v.  Koehler,  76  Ind.  398;  Bruce  v.  Bis- 
sell,  119  Ind.  525;  22  N.  E.  4.  But  the  converse  is  true,— 
that,  where  there  is  an  expressed  or  fairly  implied  intention  to 
the  contrary,  the  law  will  carry  into  effect  the  evident  purpose 
of  the  testator;  and  where  the  testator  fixes  the  time,  by  ex- 
pressed or  fairly  implied  intention,  for  the  distribution  of  his 
estate  to  his  children,  at  the  death  of  his  widow,  the  law  will  up- 
hold his  purpose  and  intention.  Wood?;.  Robertson,  113  Ind. 
323;  15  N.  E.  457.  A  conditional  fee  maybe  created  by  a  will 
as  well  as  by  a  deed.  It  is  by  no  means  uncommon  to  affix  con- 
ditions to  a  devise;  and  a  less  estate  may  be  granted,  to  continue 
until  the  happening  of  a  prescribed  event,  then  to  enlarge  into 
an  absolute  fee.  Shimer  v.  Mann,  99  Ind.  190-198.  It  is  evi- 
dent in  this  case  that  John  J.  Springer,  by  the  terms  of  the  will, 
took  a  conditional  fee;  that  his  estate  in  expectancy  was  to  en- 
large and  ripen  into  an  absolute  fee  at  the  death  of  the  widow; 
that,  he  having  died  prior  to  that  event,  his  estate  was  a  defeas- 
ible one,  which  had  been  defeated;  and  there  remains  no  interest 
which  the  appellant,  as  executor,  can  seize  upon  or  sell  by  the 
order  of  the  court  to  pay  his  debts.  A  will  ought  to  be  so  con- 
strued as  to  give  effect  to  allits  provisions,  and  make  it  a  harmoni- 
ous whole.  Jackson  V.  Hoover,  26  Ind.  511  ;  Cooper  v.  Hayes,  96 
Ind.  386;  Wood  v.  Robertson,  113  Ind.,  on  page  326;  15  N.  E. 
457  ;  Nadingv.  Elliott,  supra;  Brumfield  v.  Drook,  101  Ind.  190. 
In  this  controversy  between  the  parties  it  is  the  contention  of  the 
appellant's  counsel  in  their  reply  brief  that  the  will  must  stand 
as  if  there  was  no  provision  with  reference  to  the  widow  ;  that 
those  provisions  are  in  restraint  of  marriage  and  void,  under 
section  2567  Rev.  St.  1881  ;  Burns'  Rev.  St.  1888,  §  2737.  As 
the  widow,  Hanna  Springer,  is  still  living  and  unmarried,  and 
John  J.  Springer  departed  this  life  without  issue,  no  question  is 
presented  for  our  consideratior.  as  to  whether  the  devise  and 
bequest  contained  in  the  will  concerning  the  widow's  interest  if 
she  should  marry  are  limitations  of  the  estate  merely,  or  condi- 
tions in  restraint  of  marriage,  within  the  meaning  of  the  statute. 


338  REMAINDERS. 

If  the  question  were  before  us,  it  would  be  easy  of  solution.  In 
4  Kent  Comra.  12(5,  the  distinction  is  defined  between  words  of 
limitation  and  words  of  condition  as  follows:  "  Words  of  limit- 
ation mark  the  period  which  is  to  determine  the  estate  ;  but 
words  of  condition  render  the  estate  liable  to  bo  defeated  in  the 
intermediate  time,  if  the  event  ex[)ressed  in  the  condition  arises 
before  the  determination  of  the  estate  or  completion  of  the 
period  described  by  the  limitation.  The  one  specifies  the  utmost 
time  of  continuance,  and  the  other  marks  some  event  which,  if 
it  takes  place  in  the  course  of  that  time,  will  defeat  the  estate." 
We  find  no  error  in  the  record.     The  judgment  is  affirmed. 


Cross-Remainders. 

McGee  v.  Hall,  26  S.  C.  179;   1  S.  E.  711. 

Simpson,  C.  J.  David  Hall  died  testate  in  1860.  In  the 
third  clause  of  his  will  he  devised  two  tracts  of  land,  containing 
784  acres,  more  or  less,  to  his  three  youngest  sons,  Absolam  J. 
Hall,  John  M.  Hall,  and  William  C.  Hall,  as  follows,  to  wit : 
'*  To  be  divided  equally  between  them  in  value,  the  issue  of  any 
of  my  sons  who  may  be  dead  to  take  the  share  of  the  parent; 
and  if  either  of  them  should  die  without  issue  at  his  death,  then 
his  or  their  shares  in  said  land  to  go  to  the  surviving  brothers 
or  their  issue  as  above."  Shortly  after  the  death  of  the  tes- 
tator, the  land  was  surveyed  and  divided;  340  acres  being 
allotted  to  William  C,  212  ^to  John  M.,  and  313  to  Absolam  J. 
William  C.  was  killed  in  battle  in  1863,  being  intestate  and 
unmarried,  whereupon  his  340  acres  went  under  the  limitations 
in  the  will  to  his  two  surviving  brothers  John  and  Absolam,  and 
soon  after  this,  and  during  the  same  year  (1863),  John  died, 
also  intestate  and  unmarried,  leaving  Absolam  the  sole  surviv- 
ing brother,  who  took  possession  of  the  entire  land,  including 
the  half  of  the  340  acres  which  had  accrued  to  him  on  the 
death  of  William.  Absolam  sold  the  half  of  the  340  acres 
which  had  accrued  to  him  on  the  death  of  William,  to  a 
third  parly,  but  retained  the  other  half  upon  the  death  of 
John,  until  in  1871,  when  he  mortgaged  it  to  one  O.  H.  P. 
Fant.  This  mortgage  was  foreclosed  in  1879,  and  the  land  was 
sold  under  the  foreclosure  judgment  to  Mrs.  E.  C.  Bell,  who 
conveyed  the  same  to  the  defendant,  Lemuel  Hall. 

The  plaintiffs  and  the  defendants,  except  Lemuel  Hall,  are  the 
heirs  at  law  of  John  M.  Hall,  and  they  brought  the  action  below 
to  have  the  175  acres,  accrued  to  John  from  William,  partitioned 
between  them,  claiming  that  John  had  an  absolute  estate  therein 


CROSS- REMAINDERS.  339 

under  the  will  of  his  father.  The  defendant,  Lemuel  Hall, 
resisted  the  partition  —  First^  on  the  ground  that  the  accrued 
interest  was  governed  by  the  limitations  attached  to  the  original 
share,  and  therefore  the  plaintiffs  had  no  title;  second^  he  inter- 
posed the  statute  of  limitations;  tJiird,  he  invoked  the  doctrine 
of  estoppel;  and,  lastly,  he  claimed  that  plaintiffs  were  barred 
by  laches. 

His  honor,  I.  D.  Witherspoon,  sustained  the  construction  of 
the  will  claimed  by  the  plaintiffs,  and  overruled  all  of  the  other 
defenses  set  up  by  Lemuel  Hall,  and  referred  the  case  to  the 
master  to  have  the  land  partitioned  according  to  the  interests  of 
the  parties,  allowing  Lemuel  to  have  the  i-hare  of  Absolam 
therein,  as  an  heir  at  law  of  John  M.  The  appeal  renews  here 
the  questions  raised  before  the  circuit  judge,  to  wit,  the  proper 
construction  of  the  will  as  to  the  accrued  share  (175^  acres)  of 
John  in  the  original  share  of  William  ;  (2)  the  statute  of  limita- 
tions; (3)  the  estoppel;  and  (4)  laches. 

As  was  said  by  the  circuit  judge,  intention  should  always 
govern  in  the  construction  of  wills,  for  the  reason  that  one  who 
has  become  possessed  of  property  during  his  life  by  his  industry, 
labor,  or  otherwise,  has  the  right  to  dispose  of  it  after  his  death 
as  he  sees  proper.  This  is  one  of  the  fundamental  rights  of  the 
citizen  and  one  which  the  courts  will  always  protect.  This  in- 
tention, however,  must  be  reached  by  the  application  of  those 
rules  of  construction  which  have  been  established  as  best  adapted 
to  evolve  said  intention,  and  by  the  principles  wliich  have  been 
applied  by  the  courts  in  analogous  cases.  Intention  reached  in 
any  other  way  (as  by  considering  what  would  be  abstractly  just 
to  the  parties,  and  what  in  the  opinion  of  the  court  the  testator 
ought  to  have  done,  etc.)  is  not  allowed  because  such  a  course 
would  often  defeat  the  veiy  object  intended  to  be  accomplished, 
to  wit,  the  real  intention  of  the  testator. 

The  first  and  most  important  rule  is  the  language  of  the 
will  —  what  has  the  testator  said?  and  what  do  the  words 
used  mean,  interpreted  according  to  their  usual  and  ordinarv 
signification?  The  testator  here  has  said:  "I  devise  the  land 
to  he  divided  equally  in  value  between  my  three  sons."  There 
is  no  ambiguity  about  this  and  had  he  stopped  here  each  of  the 
sons  would  have  taken  an  absolute  indefeasible  estate  ;  the 
word  "heirs"  not  being  necessary  in  a  devise  to  convey 
the  fee.  Next,  "  the  issue  of  my  said  sons  who  may  be 
dead,  to  take  the  share  of  the  parents."  This  is  equally  as 
unambiguous  as  the  first  provision.  It  simply  declares  that  if 
either  son  shall  die  before  his  death,  leaving  issue,  said  issue 
shall  take  an  absolute  estate  in  the  share  intended  in  the  first 


340  REMAINDERS. 

instance  for  the  parent.  Next,  if  cither  son  should  "  die  without 
issue  living  at  his  de:ith,  then  his  share  in  said  land  to  go  to  the 
surviving  brothers,  or  their  issue  as  above."  'J'his  seems  quite 
unambiguous  also,  if  tlie  i)hiin  meaning  of  the  words  is  allowed 
to  control.  Having  piovided  for  the  coiilingency  of  a  son  being 
dead  leaving  issue,  and  remembering  the  possibility  of  a  son 
dying,  leaving  no  issue,  ho  provides  for  that  event,  and  how? 
By  directing  that  the  share  of  said  son  should  goto  the  surviving 
brothers,  or  their  issue,  as  above.  Now,  this  last  chiuse  is  the 
clause  which  controls  the  accrued  share.  It  supposes  that  each 
of  the  sons  has  taken  an  original  share  —  in  other  words,  has 
taken  a  fee  —  in  one-third  in  value  of  the  land,  and  this  clause 
defeats  said  fee  upon  the  contingency  of  said  son  dying,  leaving 
no  issue  at  his  death  ;  in  which  event  said  share  is  to  go  to  the 
surviving  brothers,  or  to  their  issue  as  above. 

Now,  how  had  the  shares  gone  to  the  brothers  or  their  issue 
above?  The  term  "above"  refers  to  the  clause  above  the 
one  in  which  it  is  found.  That  clause  directs  the  land  to 
go  to  the  sons  absolutely,  if  they  be  alive,  and,  if  dead, 
to  their  issue  absolutely.  It  is  the  last  clause  —  the  one  in 
which  the  term  "  above  "  is  found,  and  of  which  it  is  a  part  — 
that  defeats  the  fee  already  given  upon  the  contingency  of  a  son 
dying,  leaving  no  issue  —  dying  after  he  had  obtained  the  fee. 
Under  this  last  clause,  in  the  event  that  a  brother  died  after  the 
original  division,  leaving  no  issue,  then  his  share  went  to  the  sur- 
viving brothers,  or  to  their  issue  in  case  they  were  then  dead, 
and  it  went  to  them  in  fee.  This  being  so,  what  is  to  divest  or 
defeat  that  fee?  There  are  certainly  no  express  words  to  that 
effect  in  the  clause  itself;  no  direction  that,  in  the  event  of  the 
brothers  dying  after  this,  they  become  invested  in  fee  with  the 
accrued  share  of  a  deceased  brother,  but  said  accrued  share 
should  go  to  another  —  nothing  of  the  kind.  Nothing  is  claimed 
as  indicating  such  intent,  but  the  term  "  above,"  which,  as  we 
have  shown,  refers  entirely  to  the  previous  clause  in  which  the 
original  shares  are  disposed  of. 

We  think  the  circuit  judge  construed  properly  the  third  clause 
of  the  will,  when  considered  in  itself,  taken  as  a  whole,  as  exam- 
ined in  its  separate  parts,  so  far  as  the  language  employed 
shovvs  intention.  Does  this  construction  conflict  with  the  priu- 
ci{)les  established  in  any  of  our  decided  cases?  The  appellant 
relies  on  Lowry  v.  O'Bryan,  4  Kich.  Eq.  262,  and  Hill  v.  Hill, 
1  Stiob.  Eq.  22.  We  suppose  that  these  are  the  strongest  cases 
in  the  direction  contended  for  by  appellant.  At  least  no  others 
have  been  cited  ;  and  we  have  not  found  any  other  in  our  exam- 
ination of  the  reports. 


CROSS-REMAINDERS.  341 

The  case  of  Lowry  v.  Bryan,  as  it  appears  to  us,  fails  to  sup- 
port the  appelhuit.  In  fact,  it  does  not  touch  the  question 
here.  It  simply  decides  that,  in  a  bequest  of  personalty  "to 
four  sons;,  to  them  and  their  heirs  forever,  if  either  should  die 
without  issue,  his  part  should  be  equally  divided  between  the 
survivors  ;"  that  the  share  of  the  last  survivor  could  not  be  de- 
feated by  his  dying  without  issue  simply.  Because  one  of  the 
contingencies  was  that  it  should  go  to  the  survivor,  and  their 
beins:  no  survivor  of  the  last,  there  was  no  defeasance  of  his 
absolute  estate.  Two  of  the  sons  had  died  without  issue,  and 
their  shares  had  been  divided  equally  between  the  survivors. 
Then  William  died,  leaving  issue  ;  and,  many  years  afterwards, 
Charles,  the  last  survivor,  died  without  issue,  and  the  adminis- 
tratrix of  William  claimed  the  property.  The  court  held  that 
she  should  have  no  higher  riglits  than  her  intestate,  and  that  his 
interest  in  the  share  allotted  to  his  brother,  Charles,  depended 
upon  two  contingencies,  to  wit:  that  he  (Charles)  should  die 
without  issue,  and  that  he  (William)  should  survive  him.  But 
William  had  been  in  his  grave  30  years  before  the  death  of 
Charles;  consequently  he  took  nothing  as  survivor.  The  ques- 
tion as  to  the  accrued  interest  was  not  adjudicated  or  raised. 

The  case  of  Hill  v.  Hill,  supm^  is  directly  in  support  of  the 
construction  contended  for  by  respondents,  and  as  given  by  the 
circuit  judge.  There,  personal  property  (slaves)  had  been 
donated  to  several  persons  (four  children  of  the  grantor),  with 
a  limitation  to  survivors,  in  the  event  of  the  death  of  either 
without  issue.  One  died  without  issue,  and  his  portion  was  dis- 
tributed among  the  survivors;  and  then  a  second  died.  It  was 
held  that  the  proportion  of  the  first,  accruing  to  the  second  by 
survivorship,  did  not  go  over  to  the  remaining  survivors  upon 
the  death  of  the  second  without  issue  ;  but  that  it  became  the  ab- 
solute property  of  the  second,  which  is  the  very  case  here.  It 
is  true,  in  that  case,  Chancellor  Harper  said  that,  according  to 
the  English  law,  where  property  is  given  to  several  jointly,  the 
proi)erty  will  ve»t  in  the  surviving  joint  tenants  successively,  so 
that  the  whole  may  become  vested  in  the  last  survivor.  But 
that  doctrine  cannot  apply  here,  because  it  is  evident  that  the 
testator  did  not  contemplate  a  joint  tenancy.  It  is  true,  he 
gave  the  land  in  bulk;  but  he  directed  an  equal  division  in 
value,- —  one  share  each  to  go  to  his  sons  in  severalty,  —  which 
division  was  made  at  once,  and  each  son  at  his  death  was  in 
possession  of  his  allotted  share. 

We  have  already  discussed  the  word  "  above,"  and  we  do  not 
think  the  case  of  Meredith  v.  Meredith,  10  East,  503,  can  give 
it  the  effect  contended  for  by  appellant. 


342  UKMAINDEIIS. 

The  next  question  is  the  stutute  of  limitations.  Can  it  pro- 
tect the  defcndiUiL  under  the  facts  of  the  case?  It  is  conceded 
that  some  of  the  phiintilVs  are  not  barred,  because  of  minority. 
Will  the  minority  of  these  protect  the  others?  This,  too,  is 
conceded  as  a  general  rule.  But  it  is  contended  by  appel- 
lants that  this  applies  to  cases  of  cotenancy;  but,  where  the 
possession  of  the  defendant  is  adverse  and  exclusive  to  all  the 
world,  the  protection  afforded  by  the  statute  to  such  claim- 
ants as  may  be  minors  cannot  be  extended  to  those  who  are 
not  under  such  disability.  The  possession  of  one  tenant 
in  common  is  the  possession  of  all,  as  a  general  rule;  and  the 
possession  of  the  one  cannot  defeat  the  rights  of  the  others, 
unless  there  has  been  an  ouster,  at  which  time  the  statute  would 
begin  to  run  as  to  all  ousted,  the  minority  of  any  of  these  pro- 
tecting the  others.  Here  Absolam  Hall  wns  in  possession,  after 
the  death  of  his  brother,  John  M.,  in  1863,  until  1879,  when 
the  sale  took  place  under  the  foreclosure  of  the  mortgage, 
which  he  had  given  in  1871  to  Fant.  True,  he  supposed  he  was 
the  absolute  owner,  by  virtue  of  his  survivorship;  but  this  turns 
out  to  have  been  a  mistake,  and  his  only  right  to  possession  was  as 
one  of  heirs  at  law  to  his  brother,  John.  This  made  him  a  tenant 
in  common  with  the  other  heirs,  plaintiffs,  and  defendants  here. 
Has  he,  by  any  act  of  his  during  this  possession,  ousted  the 
plaintiffs,  and  held  since  adversely,  long  enough  to  interpose  the 
statute  as  to  these  minors?  If  not,  he  cannot  interpose  it  as  to 
any  ;  the  shield  of  the  minors  being  a  shield  to  their  co-tenants. 
Lahitfe  v.  Smart,  1  Bailey,  192;  Faysoux  v.  Prather,  1  Nott  & 
M.  298. 

Was  there  an  ouster?  Ouster  is  generally  a  question  of 
fact;  or,  rather,  whether  an  ouster  has  taken  place  is  a  ques- 
tion of  fact;  and  in  a  decided  exclusion  by  one  of  another, 
under  a  claim  of  right,  there  is  no  difficulty;  but  there  is 
no  case  which  has  adjudged  the  facts  necessary  to  ouster, 
so  that  every  case  may  be  measured  thereby.  It  has,  however, 
been  held  that  the  mere  possession  of  the  land  for  a  period 
short  of  20  years  will  not  presume  ouster.  Gray  v.  Givens, 
2  Hill  Ch.  513.  Chancellor  Harper  said  in  that  case:  "No 
doubt  an  ouster  may  be  presumed  from  the  mere  fact  of  a  very 
long  possession,  as  in  the  case  of  Fishar  v.  Prosser,  Cowp. 
217.  And  in  a  case  where  one  tenant  in  common  had  been  in 
possession  exclusively,  receiving  the  rents  and  profits  for  about 
40  years  (double  the  time  for  the  English  statute  to  run). 
Lord  Mansfield  instructed  the  jury  that,  from  the  length  of 
possession,  they  might  presume  an  ouster.  Chancellor  Harper 
adopted  the  rule  of  20  years,  in  analogy  to  the  principle  that  20 


CROSS-REMAINDERS.  343 

years  would  generally  presume  almost  anythiug  to  quiet  titles 
and  possession.  Even  if  this  rule  i»  applied,  it  cannot  avail  the 
defendant,  because  he  held  only  some  16  years.  John  M.  died 
in  18(33,  when  Al)solam  took  possession;  the  land  was  sold  under 
his  mortgage  in  1879,  when  Mrs.  Bell  bought,  from  whom  the 
defendant  purchased ;  so  that  Absolam  was  in  possession  some 
16  years.  The  only  evidence,  then,  of  ouster  on  the  part  of 
Absolam  is  16  years'  possession,  and  the  enjoyment  of  the  rents 
and  profits  during  that  time,  wiiich,  under  Gray  v.  Givens,  is 
not  suflHcient.  It  is  claimed,  however,  that  the  mortgage  of 
1871  was  an  ouster,  under  the  principle  stated  by  Chancellor 
Harper  in  Gray  v.  Givens,  sujjra,  where  he  says  "  that  whatever 
is  sufficient  to  give  the  co-tenants  notice  that  the  party  in 
possession  claims  exclusively  for  himself,  and  in  his  own  right, 
will,  I  think,  be  a  sufficient  ouster."  Admit  this,  yet  at  that 
time  several  of  the  plaintiifs  were  minors  and  their  disability 
did  not  cease  in  time  to  allow  the  statute  to  be  interposed. 
Now,  being  protected  themselves,  the  rights  of  all  the  heirs  were 
saved.  And,  in  any  event,  whether  there  be  ouster  or  not,  the 
rights  of  the  minors  were  not  lost,  and,  under  their  wing,  the 
other  heirs  are  protected. 

Next,  as  to  estoppel.  It  is  hardly  necessary  to  refer  to  author- 
ities as  to  what  constitutes  an  estoppel.  It  is  sufficient  to  say 
that  we  do  not  think  the  facts  of  this  case  are  sufficient  to  enable 
the  defendant  to  invoke  that  principle  in  his  defense.  We  see 
nothing  but  acquiescence,  and  hardly  that,  because  it  is  clear 
that  the  parties  were  ignorant  of  their  rights,  many  of  them  were 
minors,  and  they  simply  failed  to  assert  or  claim  an  interest  in 
the  land.  They,  however,  did  no  positive  act  calculated  to  mis- 
lead Absolam,  or  which  induced  him  to  do  anything  to  his 
injury. 

The  last  defense  is  the  alleged  laches  of  the  plaintiffs.  Laches 
may  be  regarded  as  an  equitable  statute  of  limitations,  and  is 
appli  d  to  equity  causes  in  analogy  to  legal  statutes  applied  to 
causes  at  law.  And,  generally,  when  a  party  would  not  be 
barred  at  law,  he  would  not  be  barred  in  equity.  This  case,  be- 
ing originally  a  complaint  for  partition,  was  brought  in  the  equity 
side  of  the  court.  The  defendant,  however,  raised  a  question  of 
title,  and  an  issue  was  ordered  as  to  that  question  to  a  jury  ;  and 
had  that  issue  been  tried  before  a  jury,  the  legal  statute  of  lim- 
itations would  have  been  relied  on,  and  the  rights  of  the  parties 
would  have  been  determined  by  the  law  governing  said  statute. 
The  jury  trial,  however,  seems  to  have  been  waived,  and  the 
entire  case  was  tried  by  the  judge.  We  have  already  adjudged 
that  the  legal  statute  cannot  avail  the  defendant,  as  to  the  ques- 


344  UEMAINDERS. 

tion  of  title,  and  wo  see  no  ground  for  tlio  interposition  of  the 
doctrine  of  laches  as  to  the  2)artition. 

It  is  tiie  judgnicut  of  this  court  that  the  judgment  of  the  cir- 
cuit court  bo  atfirinod. 

Mclver  and  McGovvan,  JJ.,  concur.  • 


Alienation  of  Contingent  Remainder. 

Foster  v.  Hackett,  112  N.  C.  546;  17  S.  E.  426. 

Action  by  John  R.  Foster  and  others  against  Siddia  Hackett 
to  recover  land.  Plaintiffs  obtained  judgment  for  a  five-sixths 
interest  in  the  land.     Defendant  appeals.     Reversed. 

Avery,  J.  Both  plaintiffs  and  defendant  claim  through  Mil- 
dred Goforth,  who  devised  the  land  in  controversy  to  Achilles 
Foster,  in  trust  for  her  daughters  Anna  D.  and  Pheba  Goforth, 
or  to  the  survivor,  for  life,  with  remainder  to  the  issue  of  both 
or  either,  but,  on  failure  of  such  issue  at  the  time  of  the  death 
of  the  survivor  of  the  two,  to  her  "  own  lawful  heirs."  Mildred 
Goforth  left,  surviving  her,  eight  children,  viz.  :  Anna  D.,  who 
died  without  issue  in  1885,  and  Pheba,  who  died  without  issue  in 
1887,  and  six  others,  who  married,  and  are  now  living,  or  have 
left  children  who  are  still  surviving,  viz.:  John  Goforth,  Will- 
iam Goforth,  Mildred,  who  married  Edward  Tilley,  Delphia, 
who  married  Wyatt  Rose,  Lucy,  who  married  Anthony  Fos- 
ter, and  who  was  the  mother  of  the  plaintiffs,  and  Levinia, 
who  married  Foster.  James  Calloway,  the  exec- 
utor of  Mildred  Goforth,  assuming  that  he  had  power  under 
the  will,  or  as  attorney  for  her  heirs  and  devisees,  sold 
and  conveyed  the  land  in  dispute  on  the  28th  day  of  June,  1858, 
while  Anna  D.  and  Pheba  were  living,  to  the  said  Levinia  Fos- 
ter, —  one  of  the  daughters  of  the  testatrix.  The  defendant 
claims  under  a  deed  from  Levinia  Foster  dated  October  6, 
1871.  It  was  admitted  on  the  trial  that  James  Calloway 
had  no  power  under  the  will  to  dispose  of  the  land,  and 
no  instrument  was  shown,  constituting  him  the  agent  of 
the  heirs  and  devisees  of  Mildred  Goforth,  or  any  of  them, 
for  that  purpose.  So,  if  we  concede  that  the  deed  of 
Levinia  to  the  defendant  precluded  her  or  her  heirs,  if  she  is 
now  dead,  from  setting  up  any  claim  to  the  interest  which  vested 
subsequently  to  the  date  of  her  deed  or  the  death  of  Pheba,  in 
1887,  in  the  "  lawful  heirs  "  of  Mildred  Goforth,  the  title  to 
one  undivided  sixth,  only,  of  the  land  in  controversy  was  shown 
to  be  in  the  plaintiffs,  while  the  other  four  undivided  sixths  are 
vested  in  John  Goforth,  William  Goforth,   Mildred  Tilley,   and 


ALIENATION   OF    CONTINGENT   REMAINDER.  345 

Delphia  Rose,  or  their  heirs  —  one-sixth  in  each.  The  plaintiffs 
have  not  excepted,  but  seem  to  have  conceded  that  the  defend- 
ant, as  the  grantee  of  Levinia  Foster,  is  a  tenant  in  common 
with  the  other  heirs  of  Mildred  Goforth,  holding  her  undivided 
sixth  interest. 

Though  the  rule  has  been  repudiated  in  many  of  the  States,  it 
seems  to  be  settled  in  North  Carolina  that  in  actions  for  the  pos- 
session of  land,  where  a  plaintiff  proves  his  title  to  an  undivided 
interest,  he  can  have  judgment  for  the  whole,  if  he  has  shown 
•'  on  the  trial  that  the  same  evidence  of  title  or  possession  that 
established  his  own  right  demonstrated  the  fact  that  others  than 
the  defendant  held  as  cotenants  the  other  undivided  interest,  and 
that  the  action  inured  to  their  benefit,"  Allen?;.  Salinger,  103 
N.  C.  18  ;  8  S.  E.  Rep.  913;  Sedg.  &  W.  Tr.  Title  Land,  §  300. 
The  rule  is  stated  by  Sedgwick  and  Waite  as  follows:  "  Each 
cotenant  can  pursue  his  remedies  independent  of  the  others,  and 
may  maintain  ejectment  or  trespass  to  try  title  alone,  and  in  many 
States  may  recover  the  entire  premises  and  estate  from  trespass- 
ers, strangers,  wrongdoers,  and  all  persons  other  than  his  co- 
tenants,  and  those  claiming;  under  them.  When  his  ri";ht  is  rec- 
ognized,  he  recovers  for  all.  This  principle  has  been  expressly 
recognized  in  Oregon,  Nebraska,  Nevada,  North  Carolina,  etc. 
*  *  *  But  the  rule  has  been  repudiated  in  Massachusetts, 
Pennsylvania,  and  Missouri."  Where,  in  the  old  declaration  in 
ejectment,  the  demise  was  laid  from  one  of  several  tenants  in 
common,  the  plaintiff  could  recover  his  term  in  the  undivided 
share  of  that  particular  tenant  (Godfrey  V.  Cartwright,  4  Dev. 
487;  Holdfast  v.  Shepard,  6  Ired.  361),  and  on  the  joint 
demise  of  two  or  more  lessors,  who  are  tenants  in  common  with 
another  or  others,  a  recovery  might  be  had  to  the  extent  of  their 
combined  interest,  unless  there  was  joined  with  them  in  the 
demise  a  person  not  shown  to  have  such  common  interest  with 
them  (Bronson  v.  Paynter,  4  Dev.  &  B.  395;  Hoyle  v.  Stowe, 
2  Dev.  318).  Where,  in  such  cases,  a  general  verdict  of  guilty 
was  returned,  the  plaintiff  was  entitled  to  judgment  that 
he  recover  his  term,  as  under  the  writ  of  possession  the 
lessor  of  the  plaintiff  proceeded  at  his  peril.  Holdfast  v. 
Shepard,  supra.  But  as  was  said  by  Daniel,  J.,  in  God- 
frey V.  Cartwright,  supra,  *'  the  more  correct  way  of  pro- 
ceeding is  for  the  jury  to  find  the  defendant  guilty  of 
the  trespass  and  ejectment  in  the  undivided  portion  of  the  land 
described  in  the  declaration  to  which  the  lessor  proves  title  on 
the  trial,  and  then  the  judgment  shall  be  rendered  accordingly," 
viz.,  that  the  plaintiff  be  let  into  possession  of,  or  as  to,  his 
undivided  interest.     In  Lenoir   v.  South,   10  Ired.  241,  Chief 


346  REMAINDEU8. 

Justice  RuflSn,  in  speaking  of  the  propriety  of  returning  specific 
findings  us  to  boundaries  or  extent  of  interest,  siiid :  "  The  jury 
may,  indeed,  give  a  general  verdict,  and  it  is  usual  to  do  so;  but, 
when  the  precise  interest  of  the  lessor  or  the  lessors  of  the 
plaintiff  ai)pears,  it  is  generally  proper,  and  most  for  the  con- 
venience, that  the  verdict  should  be  according  to  it."  But  when 
the  fictitious  action  was  abolished,  and  that  for  possession  was 
substituted  for  it,  it  became  all-important,  if  title  was  put  in 
issue,  as  it  generally  was,  that  the  plaintiff's  judgment  should  be 
limited  to  his  actual  boundary  or  to  his  specific  interest,  because 
it  was  no  longer  a  contest  between  nominal,  but  real,  parties, 
and  the  decree  was  conclusive  both  as  to  territorial  limits  and 
the  nature  of  the  seisin.  Withrow  v.  Biggerstaff,  82  N.  C.  82  ; 
Allen  V.  Salinger,  supra;  Gilchrist  v.  Middletou,  108  N.  C.  683, 
12  S.  E.  Rep.  85.  In  Gilchrist  v.  Middleton,  supra^  the  court 
said:  *'  One  tenant  in  common  of  land  may  sue  alone,  and  re- 
cover the  entire  interest  in  the  common  property, against  another, 
claiming  adversely  to  his  cotenants  as  well  as  to  himself,  though 
he  actually  prove  title  to  only  an  undivided  interest.  This  he  is 
allowed  to  do  in  order  to  protect  the  rights  of  his  cotenants 
against  trespassers  and  disseisors.  But  where  it  appears  from 
the  proof  offered  to  show  title,  or  is  admitted,  as  in  this  case, 
that  a  defendant  who  has  confessed  ouster  by  denying  plaintiff's 
title  is  in  reality  a  tenant  in  common  with  the  latter,  it  is  the 
duty  of  the  court  to  instruct  the  jury,  by  a  specific  finding,  to 
ascertain  and  determine  the  undivided  interest  of  the  plaintiff. 
This  obviates  the  danger  of  concluding  the  defendant  by  a  gen- 
eral finding  that  the  phiintiff  is  the  owner."  It  thus  appears 
"  how  one  tenant  in  common  may  sue  a  trespasser  who  is  in- 
fringing upon  the  rights  of  himself  and  his  cotenants,  and  re- 
cover the  entire  land,  or  sue  his  cotenant,  who  simply  refuses  to 
recognize  his  right  in  his  answer,  and  recover  such  interest,  only, 
as  he  may  establish  title  for." 

The  rule  which  we  have  been  discussing  is  one  peculiarly  ap- 
plicable to  actions  for  the  possession  of  land,  being  that  which 
obtained  in  the  trial  of  actions  of  ejectment  modified  so  far  as 
to  accommodate  it  to  the  new  remedy  substituted  for  the  old 
fictitious  suit.  "  The  exception  to  the  general  rule  that  all 
persons  interested  in,  and  to  be  affected,  must  be  made 
parties,  on  the  one  side  or  the  other,  obtained  in  courts  of 
equity,  where  they  were  very  numerous,  or  it  was  impracticable 
to  bring  them  all  before  the  court."  Story  Ex.  PI.,  §  122; 
Bronson  v.  Insurance  Co.,  85  N.  C.  444.  Section  185  of  the 
code  reaffirms  this  principle,  and  enlarges  its  operation,  by  allow- 
ing one  to  sue  for  all   others,  both  where  the  parties  are  very 


ALIENATION    OF    CONTINGENT    REMAINDER.  347 

numerous,  and  where  they  have  common  interests,  in  all  actions, 
without  regard  to  their  nature.  Bronson  v.  Insurance  Co., 
supra;  Pom.  Rem.,  §  391;  Thames  v.  Jone;*,  97  N.  C.  126;  1 
S.  E.  Eep.  (592  ;  Glenn  v.  Bank,  72  N.  C.  626.  But  where  one 
rests  his  right  to  sue  alone  in  behalf  of  himself  and  others  on  the 
ground  that  the  parties  in  interest  are  so  numerous  that  it  is 
impracticable  to  bring  them  before  the  court,  he  must  so  allege. 
Thames  v.  Jones,  siqjra;  McMillan  v.  Reeves,  102  N.  C.  558;  9 
S.  E.  Rep.  449  ;  Clark's  Code,  p.  98.  It  is  obvious,  therefore, 
that  one  of  several  cotenants,  when  he  brings  an  action  against 
a  trespasser  on  the  common  property,  and  proves  the  title  of  the 
other  tenants  in  establishing  his  own,  may,  under  the  common- 
law  practice  in  ejectment,  applied  to  actions  for  the  possession 
of  land,  recover  the  whole,  though  he  claim  sole  seisin  in  his 
complaint  in  himself,  just  as  he  can  do  under  the  procedure 
described  in  the  code,  by  alleging  that  the  action  is  brought 
in  behalf  of  himself  and  others  having  a  common  interest, 
though  it  has  never  been  determined  in  this  State  how  far,  if  at 
all,  in  the  action  under  the  provisions  of  the  statute,  the 
cotenants,  not  actual  parties,  would  be  concluded  by  the  judg- 
ment. Thames  v.  Jones,  supra;  Pom.  Rem.,  §  391.  The 
statutory  remedy  not  being  exclusive,  the  plaintiffs  were  at 
liberty,  after  claiming  sole  seisin,  to  insist  upon  recovering  the 
whole,  if  they  showed  title  in  themselves  and  cotenants,  against 
a  tort  feasor  in  possession.  If,  therefore,  the  deed  of  Levinia 
Foster,  executed  in  1871,  when  in  contemplation  of  law,  it  was 
possible  that  both  Anna  and  Pheba  Goforth  might  still  have 
issue,  operated,  upon  the  death  of  the  survivor  of  the  two  in 
1887,  to  pass  the  one  undivided  sixth  that  would  then  have  vested 
in  her  to  the  defendant  as  her  grantee,  then  the  defendant  is  a 
tenant  in  common  ;  and  the  court  should  have  instructed  the  jury 
to  tind  that  the  plaintiffs  were  the  owners  of  one  undivided  sixth, 
and  should  have  given  judgment  that  they  be  let  into  possession 
according  to  their  interests.  Levinia  Foster  executed  the  deed 
in  1871  to  a  contingent  interest,  which  could  vest  in  her  only, 
in  case  both  Anna  and  Pheba  should  die  without  issue,  and  she 
should  survive  them. 

Blackstone  (volume  2,  p.  290)  lays  down  the  rule  as  follows: 
"Reversions  and  vested  remainders  may  be  granted,  because 
the  possession  of  the  particular  tenant  is  the  possession  of 
him  in  reversion  or  remainder ;  but  contingencies  and  mere 
possibilities,  though  they  may  be  released  or  devised  by  will, 
or  may  pass  to  the  heir  or  executor,  yet  cannot,  it  hath 
been  said,  be  assigned  to  a  stranger  unless  coupled  with  some 
interest."     The  ancient  policy,  which  prohibited  the  sale  of  a 


348  REMAINDERS. 

pretended  title,  and  adjudged  the  act  to  be  an  unlawful  mainte- 
nance, it  was  well  said  l)y  Chancellor  Kent,  has  out  lived  tlie  reason 
upon  which  it  was  founded,  in  a  state  of  society  very  different 
from  that  now  existin<]j  in  any  part  of  the  United  States  or  the 
British  dominion.  2  Kent  Comm.  447.  The  limitation  is  sim- 
ihir  to  that  discussion  in  Watson  v.  Smith,  14  S.  E.  Rep.  640; 
the  onlv  difference  being  that  the  persons  who  were  to  take  the 
contingent  interest  on  failure  of  issue  of  J.  W.  B.  Watson  at  his 
death  were  in  that  case  designated  by  name,  whereas  in  our  case 
the  contingent  interest  was  to  vest  in  "  the  lawful  heirs  "  of  the 
devisor,  whoever  they  may  be,  upon  the  death  of  the  survivor  of 
the  two  daughters,  and  failure  of  issue  of  both.  In  some  of  the 
States  there  are  statutes  expressly  providing  that  such  expectan- 
cies can  be  conveyed  by  deed,  but,  in  the  absence  of  such  legisla- 
tion, we  would  be  led  into  a  discussion  of  questions  as  to  which 
there  is  some  conflict  of  opinion,  if  our  decision  hinged  upon 
the  inquiry  whether  Levinia  Foster  had  the  power  in  1871  to 
convey,  or  only  to  make  an  assignment  of  her  interest  for  a  val- 
uable consideration,  which,  as  a  contract  to  convey,  she  would  be 
compelled  by  a  court  of  equity  to  perform  specifically  on  the  hap- 
pening of  the  contingency  when  her  estate  should  vest,  or 
whether  she  was  prohibited  1)y  i)ublic  policy,  on  account  of  the 
uncertainty  of  the  persons  who  would  fall  under  the  description 
of  *'  lawful  heirs  "  on  failure  of  issue  of  Anna  and  Pheba  at  the 
death  of  the  survivor,  from  transferring  her  interest,  either  in 
law  or  equity.  Washb.  Ecal  Prop.,  pp.  737,  776,  777;  McDon- 
ald V.  McDonald,  5  Jones  Eq.  211;  Mastin  v.  Marlow,  65  N.  C. 
695;  20  Amer.  &  Eng.  Enc.  Law,  pp.  9(38,969,  notes;  1  Amer. 
&  Eng.  Enc.  Law,  p.  830  ;  Shep.  Touch.  238;  6  Cruise  Dig.  27. 
If  the  deed  were  upheld  only  as  an  equitable  assignment,  and 
the  defendant  wished  to  rest  her  defense  upon  the  ground  that 
it  passed  the  equitable  interest  of  Levinia  Foster  to  her,  it 
would  be  essential  that  she  should  set  forth  and  plead  specifically 
her  equity.  Geer  v.  Geer,  109  N.  C.  679;  14  S.  E.  Rep.  297. 
But,  in  order  to  obviate  the  necessity  of  discussing  these  intri- 
cate and  interesting  questions,  this  court,  in  the  exercise  of  its 
discretionary  power,  has  ordered  to  be  certified  a  copy  of  the 
deed  from  Levinia  Foster  to  Sitldia  Hackett,  from  which  it 
appears  that  the  grantor  covenanted  therein,  for  herself  and 
her  heirs,  to  forever  warrant  and  defend  the  title  to  the  lands 
conveyed  to  the  said  Siddia  Hackett  against  the  claims 
of  all  persons  whatsoever.  The  deed  with  warranty, 
certainly  took  effect  upon  the  death  of  Pheba,  in  1887, 
so  as  to  pass  the  title,  by  way  of  estoppel,  to  the  defend- 
ant, as   the    grantee    or   Levinia  Foster,  to  the  one  undivided 


CONTINGENT    REMAINDER    TO    SURVIVING    CHILDREN.  349 

sixth  which  then  vested  in  her,  as  asjainst  Levinia  Foster  or  her 
heirs,  if  she  were  then  dead.  It  docs  not  appear  positively 
whether  Levinia  was  living  or  dead  when  Pheba  died,  in  1887, 
but  the  deed  would  esto[)  her ;  or  the  warranty,  her  heirs. 
Benick  v.  Bowman,  3  eTones  Eq.  314;  Sedg.  &  W.  Tr.  Title 
Land,  §  850;  Tied.  Real  Prop.,  §  727;  6  Lawson  Rights,  Rem. 
&  Pr.,  §  2701.  The  defendant  being  the  owner  of  the  undivided 
sixth  iutt^-est  that  vested  on  the  death  of  Pheba  in  Levinia  Fos- 
ter, or  her  children  and  heirs  at  law,  was  a  tenant  in  common 
with  the  i)laintiffs,  and  not  a  trespasser.  The  court  below  erred, 
therefore,  in  instructing  the  juiy  tofind  that  the  plaintiff  was  the 
owner,  and  entitled  to  the  possession,  of  five  undivided  sixths  of 
the  land  \ying  northeast  of  the  creek.  The  response  to  the  issue 
should  have  been  that  plaintiffs  were  the  owners  of  one  undivided 
sixth,  and  judgment  should  have  been  rendered  that  they  be  let 
into  possession  with  defendant  according  to  their  interest.  For 
the  error  mentioned  a  new  trial  must  be  granted.  Whether  the 
defendant  can  offer  any  testimony  on  the  text  trial  that  should 
be  submitted  to  the  jury  as  tending  to  show  an  estoppel  in  pais, 
remains  to  be  seen.     New  trial. 


Contingent  Remainder  to  Surviving  Children. 

Chapin  v.  Crow,  147  111.  219;  36  N.  E.  536. 

Opinion  by  Shope,  J. 

This  was  a  bill  for  specific  performance,  filed  April  21,  1892, 
by  Alice  J.  Crow  against  appellants,  in  which  it  is  alleged  that 
complainant  sold  to  appellants,  and  they  agreed  to  purchase,  at 
the  price  of  $8,250,  certain  lands.  The  contract  of  sale  was 
reduced  to  writing,  signed  by  the  parties,  which  recited  that  $500 
of  the  consideration  had  been  paid  as  earnest  money,  and  appel- 
lants contracted  to  pay  the  further  sum  of  $7,750  upon  the  mak- 
ing of  a  good  and  sufficient  deed  conveying  to  them  *'  a  good 
and  merchantable  title  to  said  premises."  It  is  stipulated  that 
tbe  vendor  shall  convey  a  good  and  merchantable  title,  subject  to 
certain  leases,  etc.,  and  shall  furnish  an  abstract  brought  down 
to  date,  showing  such  title.  It  is  then  provided  that  the  pur- 
chaser, within  ten  days  after  receiving  the  al)stract,  shall  deliver 
a  note  or  memorandum  of  objections  to  the  title,  if  any,  ete.; 
and  if  material  objections  are  found,  not  cured  within  30  days 
after  notice,  the  contract  to  be  void,  at  the  option  of  the  pur- 
chaser, etc.  The  cause  was  heard  on  bill,  answer,  and  proofs, 
and  a  decree  entered  according  to  the  prayer  of  the  l)ill. 

The  question  presented  is  whether,  by  the  deed  to  the  War- 


350  REMAINDERS. 

riugtona,  the  sons  look  a  vested  estiite  in  remainder  after  the 
death  of  their  father.  If  they  did,  it  is  conceded  appellee  had  a 
mercliantaI)lo  title,  and  the  decree  was  properly  entered.  The 
tiut'o  —  Iliiiry,  George,  and  James  Warrington — joined  in  a 
vvairanty  doe(l  to  appellee's  grantor,  and  the  qnestion  is  whether 
that  conveyed  a  perfect  title.  The  deed  culling  for  construction 
was  made  by  Horatio  L.  Wait  and  wife  to  Henry  Warrington, 
George  Warrington,  and  James  Warrington,  parties  of  the  second 
part,  and  purported  to  convey  the  ))remises  in  question  to  the 
"said  Henry  Warrington  and  his  assigns  for  and  during  the 
natural  life  of  the  said  Henry  Warrington;  and  ui)on  his  death, 
then  unto  his  sons,  the  said  George  Warrington  and  James  War- 
rington, of  the  second  part,  to  their  heirs  and  assigns,  forever, 
in  equal  parts  if  they  shall  both  survive  the  said  Henry  Warring- 
ton ;  but,  if  either  of  said  sons  shall  die  without  issue  him  sur- 
viving, then  the  survivor  shall  take  all  the  said  property  hereby 
conveyed;  but,  if  one  of  said  sons  shall  die  leaving  issue,  then 
one  moiety  to  the  survivor  and  the  other  moiety  in  equal  parts 
to  the  children  of  the  deceased."  Habendum  :  "  To  have  and  to 
hold,  all  and  singular,  the  above  mentioned  and  described  prem- 
ises, together  with  the  appurtenances,  in  conformity  with  and  in 
pursuance  of  the  conditions  of  the  aforementioned  grant." 

It  will  not  be  necessary  in  this  case  to  discuss  at  length  the 
doctrine  of  remainders,  however  interesting  that  might  be.  It 
should,  however,  be  remarked  that  the  rule  is  well  established 
that  contingent  remainders  are  not  favored,  and  unless,  from  the 
lanofuase  of  the  instrument,  it  is  manifest  that  a  contrary  result 
was  intended,  the  estate  will  be  regarded  as  vested,  and  not  con- 
tingent. It  is,  however,  equally  well  settled  that  effect  must  be 
given  to  the  language  employed,  and,  if  an  estate  upon  contin- 
gency is  created,  it  must  be  so  declared.  "  Vested  remainder 
(or  remainder  executed,  whereby  a  present  interest  passes  to 
the  party,  although  to  be  enjoyed  in  fuiuro)  is  where  the  estate 
is  invariably  fixed,  to  remain  to  a  determinate  person,  after  the 
particular  estate  is  spent."  2  Bl.  Comm.  168.  Or,  as  said  by 
Kent  (4  Comm.  202)  :  "  A  remainder  is  vested  when  there  is  an 
immediate  right  of  present  enjoyment,  or  a  present  fixed  right 
of  future  enjoyment.  *  *  *  A  vested  remainder  is  an  estate 
to  take  efiect  in  possession  after  a  particular  estate  is  spent." 
For,  though  it  may  be  uncertain  whether  a  remainder  will  ever 
take  effect  in  possession,  it  will  nevertheless  be  a  vested  re- 
mainder if  the  interest  is  fixed.  It  is  the  present  capacity  of 
taking  effect  in  possession,  if  the  possession  were  to  become 
vacant,  that  distinguishes  a  vested  from  a  contingent  remainder. 
In  cases  of    vested  remainders,   a  present  interest  passes  to  a 


CONTINGENT  REMAINDER  TO  SURVIVING    CHILDREN.  351 

deterniinnte  and  fixed  person  or  class  of  persons,  to  be  enjoyed 
in  the  Juture.  "  Contin<rent  or  executory  remainders  (wlierehy 
no  ])res('nt  interest  passes)  are  where  the  estate  in  remainder  is 
limited  to  take  effect  either  to  a  dubious  and  uncertain  person 
or  n|)()ii  a  dubious  and  uncertain  event  ;  so  that  the  particular 
estate  may  chance  to  be  determined  and  the  remainder  never 
take  effect."  2  Bl.  Comm.  1(59.  "It  is,"  says  Mr.  Preston 
(page  74),  "not  the  uncertainty  of  enjoyment  in  future,  but 
the  uncertainty  of  the  right  to  that  enjoyment,  which  marks  the 
difference  between  an  interest  which  is  vested  and  one  which  is 
contingent.  It  is  in  one  case  the  certainty  and  fixed  right  of 
having  the  enjoyment  at  the  time  when  the  possession  shall  fall, 
and  in  the  other  case  the  uncertainty  of  having  this  right  at  that 
time,  which  are  universally  the  characteristics  and  distinguish- 
ing features;  the  former  instance  of  a  vested  estate,  and  in  the 
latter  instance  an  interest  in  contingency."  Thus  it  is  said  by 
Blackstone  (2  Comm.  170)  :  "A  remainder  may  be  also  contin- 
gent where  the  person  to  whom  it  is  limited  Is  fixed  and  certain, 
but  the  event  upon  which  it  is  to  take  effect  is  vague  and  uncer- 
tain; as  where  land  is  given  to  A.  for  life,  and  in  case  B.  sur- 
vives him,  then  with  remainder  to  B.  in  fee.  Here  B.  is  a 
certain  person,  but  the  remainder  to  him  is  a  contingent  re- 
mainder, depending  ui)on  a  dubious  event,  — the  uncertainty  of 
his  surviving  A.  During  the  joint  lives  of  A.  and  B.  it  is  con- 
tingent; and  if  B.  dies  first  it  never  can  vest  in  his  heirs,  but  is 
forever  gone.  If  A.  dies  first,  the  remainder  to  B.  becomes 
vested."  Fearne  Rem.,  p.  1.  In  Smith  v.  West,  103  111.  332, 
this  court  quoted  with  approval  from  Hawley  v.  James,  5  Paige, 
466,  as  follows:  "  Where  the  remainder- man's  right  to  an  estate 
in  possession  cannot  be  defeated  by  third  persons,  or  contingent 
events,  or  by  a  failure  of  a  condition  precedent,  if  he  lives,  and 
the  estate  limited  to  him  by  way  of  remainder  continues  till  the 
precedent  estates  are  determined,  his  remainder  is  vested  in  in- 
terest," and  from  Moore  v.  Little,  41  N.  Y.  72,  that  "  decisions 
and  text-writers  agree  that  by  the  common  law  remainder  is 
vested  where  there  is  a  person  in  being  who  has  a  present  capac- 
ity to  take  in  remainder,  if  the  particular  estate  be  then  presently 
determined  ;  otherwise  the  remainder  is  contingent.  *  *  *  The 
person  must  be  one  to  whose  competency  to  take  no  further  or 
other  condition  attaches,  etc.,  i.  e.,  in  respect  to  whom  it  is  not 
necessary  that  any  event  shall  occur,  or  condition  be  satisfied, 
save  only  that  the  precedent  estate  shall  determine."  Olnev  v. 
Hull,  21  Pick.  311;  Thompson  v.  Ludington,  104  Mass.  193; 
Hull  V.  Beals,  23  Ind.  25  ;  Dmglev  v.  Dingley,  5  Mass.  537  ; 
Schofield  V.  Olcott,  120  III.  361;1i"'N.  E.  Rep.  351. 


352  RRMAINDERS. 

In  this  ca^e,  that  a  life  estate  was  vested  in  Henry  Warrin":- 
ton  is  unquestioned.  The  grant  is  to  Henry  Warrington  and 
assifrns,  for  and  during  his  natural  life;  and  upon  hisdeath,  then 
unto  his  sons,  the  said  George  Warrington  and  Janies  Warring- 
ton, of  the  second  part,  in  e()uai  parts.  If  the  gi-aiit  to  the  sons 
had  stopped  her*',  there  couhl  have  been  no  question  that  the  es- 
tate vested  in  the  sons  as  tenants  in  common.  Such  would  have 
been  the  effect  without  the  words,  "  in  equal  parts."  These 
words,  "in  equal  parts,"  are  to  be  read  with  the  succeeding 
words,  "  if  they  shall  both  survive  the  said  Henry  Warrington." 
There  can  be  no  question  about  the  intent  thus  f:ir.  But  these 
words  are  followed  by  the  clause:  "But  if  either  of  said  sons 
shall  die  without  issue  him  surviving,  then  the  survivor  shall  take 
all  of  said  property  hereby- conveyed."  That  is,  the  intention 
expressed  is,  they  shall  take  in  equal  parts  if  they  both  survive 
the  life  tenant,  but  if  one  die  without  surviving  issue,  the  other 
shall  take  the  whole;  thus  attempting,  upon  the  contingency  of 
one  dying  during  the  continuance  of  the  life  estate,  without 
issue  surviving  him,  to  cast  the  whole  estate  upon  the 
survivor.  It  is  unnecessary  to  determine  whether,  if  the  grant- 
ing clause  had  ended  with  this  provision,  the  estate  would  have 
vested  in  the  two,  subject  to  bo  divested  as  to  one  who  should 
die  during  the  life  estate  without  surviving  issue  or  not.  In  our 
opinion,  the  remaining  portion  of  the  granting  clause  clearly 
indicates  an  intention  that,  upon  the  contingency  tliat  one 
of  the  sons  shall  die  before  the  termination  of  the  life  estate, 
leaving  issue  him  surviving,  the  estate  of  the  decedent  shall  go 
to  his  children.  As  we  have  seen,  after  granting  to  the  sons  and 
their  heirs  and  assigns  in  remanider  in  equal  parts  if  they  shall 
both  survive  the  life  tenant,  but,  if  either  should  die  without 
issue  surviving  before  the  falling  in  of  the  precedent  estate,  then 
the  survivor  shall  take  the  whole,  there  is  the  further  condition  : 
«'  But  if  one  of  said  sons  shall  die  leaving  issue,  then  one  moiety 
to  the  survivor,  and  the  other  moiety  in  equal  parts  to  the  chil- 
dren of  the  deceased."  It  is  clear  that  by  the  words,  "  if  one  of 
said  sons  shall  die  leaving  issue,"  was  meant,  if  the  sons  shall 
die  leaving  issue  before  the  vesting  of  the  estate  in  possession,  — 
that  is,  before  the  termination  of  the  intermediate  estate,  —  then, 
and  in  that  event,  the  moiety  that  would  have  vested  in  him  had 
he  lived  is  granted  to  his  children. 

The  term  "  children,"  in  its  natural  sense  is  a  word  of  pur- 
chase, and  will  be  taken  to  have  been  so  used,  unless  so  con- 
trolled and  limited  by  other  expressions  in  the  instrument 
as  to  show  that  it  was  intended  as  a  word  of  limitation.  We 
need  not  extend  this  opinion  by  a  discussion  of  this  proposition  ;  it 


RULE    OF    PERPETUITY.  353 

will  be  found  to  be  well  established.  In  re  Sander.s,  4  Pajoje, 
293;  Baker  v.  SooU,  fi2  III.  HG ;  Bearcroft  v.  Stravvn,  67  III.  28; 
Rogers  v.  Rogers,  3  Wend.  503.  Not  only  are  there  no  words 
tending  to  show  that  the  word  "children"  was  here  used  as 
meaning  heirs  generally,  but  it  is  clearly  shown  to  have  meant 
the  issue  of  the  son  dying.  Ui)on'  the  contingency,  therefore, 
of  one  of  the  sons  dying  before  the  falling  in  of  the  life  estate, 
leaving  children  surviving  him,  such  children  would  take,  not  as 
heirs  of  the  son  dyinir,  but  as  grantees  in  the  deed, — as  pur- 
chasers. Ebey  v.  Adams,  135  111.  80;  25  N.  E.  Rep.  1013,  and 
cases  cited.  This  being  so,  it  is  apparent  that  it  was  not  tixed 
and  determined  by  the  deed  who  should  take  absolntcly  at  the 
termination  of  the  precedent  estate.  If  the  sons  survive  the 
father,  the  estate  would  he  vested  in  them,  both  in  interest  and 
possession.  If  one  of  them  died,  leaving  children  him  surviving, 
the  estate  would,  upon  the  termination  of  the  life  estate,  vest  m 
the  suivivor  of  the  two  sons  and  the  children  of  the  deceased 
son.  If  the  limitation  hiid  been  to  the  sons,  and,  if  they  died 
before  the  life  estate  terminated,  then  to  a  stranger,  no  question 
could  have  been  made  that  the  estate  was  contingent  upon  their 
surviving  until  the  exi)iration  of  the  intermediate  estate. 
Precisely  the  same  occurs  here.  The  grant  is  to  the  sons, 
if  alive  when  the  estate  terminates  ;  if  not,  to  their  children 
surviving  them  as  a  class.  It  cannot  be  known  until  the  death 
of  the  life  tenant  whether  the  contingency  upon  which  the  sons 
are  to  take  will  exist.  Nor  can  it  be  known  whether  the 
children  of  either  one  of  them  will  take,  as  that  will  depend 
upon  the  contingency  of  is>ue  being  born,  the  death  of  the  sons 
and  the  children  surviving  them.  Nor  need  we  determine  here 
what  would  be  the  result  if  both  sons  should  die  during  the  con- 
tinuance of  the  particular  estate,  with  or  without  issue.  It  is 
clear,  we  think,  that  the  estate  in  the  sons,  James  and  George 
Warrington,  was  contingent  upon  their  surviving  the  life  tenant ; 
or,  if  one  of  them  should  die,  and  not  the  other,  that  the  de- 
ceased son  should  have  died  without  issue  him  surviving.  It 
follows  necessarily  that  we  are  of  opinion  the  deed  from  the 
Warringtons  to  Smith  and  from  Smith  to  appellee  did  not  con- 
vey a  good  and  merchantable  title,  and  the  decree  ordering 
specific  performance  of  the  agreement  of  purchase  and  sale  was 
therefore  erroneously  entered.  It  will  accordingly  be  reversed, 
and  the  bill  dismissed. 

23 


354  KEMAINDERS. 

Remainders  and  tlie  Rule  of  Perpetuity. 

Seaver  v.  Fitzgerald,  141  Mass.  401 ;  C  N.  E.  73. 

This  was  a  real  action  in  wiiich  the  dot'endant  claimed  title  to, 
and  sought  to  recover  possession  of,  a  ))arcel  of  land  in  Law- 
rence. The  plea  was  nnl  disseisin.  Hearing  in  the  superior 
court  before  Gardner,  J.,  who  found  the  following  facts:  — 

The  defendant  claimed  title  to  the  premises  by  descent,  as 
next  of  kin  and  heir  at  law  of  Annie  J.  Rafl'erty,  who  died  at 
Lawrence  in  1879.  One  Huo;h  Ruffertv,  at  the  time  of  his  death 
in  1873,  was  seised  in  fee  simple  and  possessed  of  said  premises, 
so  described  in  the  wiit  in  this  action.  Said  Hugh  left  a  last 
will  and  testament,  which  was  duly  proved  and  allowed  in  the 
probate  couit  for  the  county  of  Essex.  At  the  time  of  said 
Hugh  Rafferly's  death,  his  sole  heir  and  next  of  kin  was  his 
daughter,  Annie  J.  Rafferty,  named  in  said  will  as  cestui  que 
ti'ust.  Said  Annie  J.  died  at  said  Lawrence  in  1879,  intestate, 
unmarried,  and  without  issue.  The  demandant  is  her  heir;  the 
said  Elizabeth  being  the  sister  of  said  Hugh  Rafferty,  who  was 
the  father  of  said  Annie.  The  tenant,  Fitzgerald,  was  in 
possession  of  said  premises  claiming  a  title  in  fee  thereunto 
under  a  deed  from  the  Augustinian  Society,  named  in  said  will, 
to  whom  said  trustees  conveyed  the  same  after  the  death  of 
Annie  J.  Raffert3^  The  demandant  claimed  that  the  devise  to 
the  Augustinian  Society  was  void,  and  the  deed  of  the  trustees 
to  it  therefore  passed  no  title. 

Upon  the  foregoing  facts  the  court  ruled  that  the  demandant 
could  not  maintain  her  action  in  law,  and  reported  the  case  for 
the  consideration  of  the  full  court.  The  material  part  of  the 
will  of  said  Hugh  Rafferty  was  as  follows:  — 

*^  Item  12.  I  give,  bequeath,  and  devise  all  the  remainder  of 
my  property,  real,  personal,  and  mixed,  of  which  I  shall  die 
seised  and  possessed,  or  to  which  I  shall  be  entitled  at  the  time 
of  my  decease,  to  my  said  executors,  Patrick  Sweeney  and 
Thomas  Conway,  to  hold  in  trust,  to  use  so  much  of  the  income 
thereof  as  shall  be  needed  to  give  my  daughter,  Annie  J.  Raf- 
ferty, a  good  and  suitable  support  so  long  as  she  shall  live;  also, 
if  she  shall  ever  have  a  child,  or  children,  my  said  executors  shall 
support  them  in  a  proper  manner  from  said  income  or  property 
during  the  life  of  each  and  all.  The  balance  of  said  income 
and  the  property,  after  death  of  my  said  child  and  her  child  or 
children  (if  any),  shall  all  oe  paid  over  by  my  executors 
for  the  sole  use  and  benetit  of  the  Augustinian  Society  of 
Lawrence,  a  body  corporate,  duly  established  by  the  laws  of 


RULE    IN    SHKLLKY's    CASE.  355 

this  cojiiinonwealth  in  the  year  of  our  Lord  eighteen  hundred 
and  seventy,  to  said  corporation  forevei." 

C.  Allen,  J.  There  is  no  objection,  on  the  ground  of 
remoteness,  to  a  gift  to  unborn  cliihhen  for  life,  and  then  to  an 
ascertained  ))erson,  providing  the  vesting  of  the  estate  in  the  lat- 
ter is  not  postponed  too  lojiiii:.  Loring  v.  Blake,  98  Mass.  253; 
Evans  V.  Walker,  3  Ch.  Div.  211;  hi  re  Roberts,  19  Ch.  Div. 
520;  Lewis  Perp.  417-511 . 

In  all  the  cases  cited  by  demandant's  counsel,  the  gift  over 
was  to  persons  who  might  not  be  ascertainable  with  certainty 
within  the  allowed  time.  But  the  present  case  is  not  of  that 
class.  There  was  no  contingency  of  uncertainty  as  to  who 
should  finally  take.  The  estate  or  interest  vested  in  the  Augus- 
tinian  Society,  a  body  corporate,  absolutely  and  at  once,  ui)on 
the  testator's  death,  subject  to  the  preceding  life  estates.  All 
that  is  required  by  the  rules  against  perpetuities  is  that  the 
estate  or  interest  should  vest  within  the  prescribed  period.  The 
right  of  possession  may  l)e  postponed  longer.  Moreover,  the 
devise  was  to  take  full  effect,  with  right  of  possession,  upon 
the  death  of  the  testator's  daughter,  Annie,  if  she  should  leave  no 
child.  In  point  of  fact,  she  left  none.  Therefore,  in  this 
alternative  contingency,  not  only  the  estate,  but  the  right  of 
possession,  would  certainly  vest  within  the  permitted  period; 
and  as  tliis  contingency  is  the  one  which  happened,  the  validity 
of  the  devise  vvonld  not  be  affected  by  the  consideration  that 
the  other  contingency  might  be  too  remote.  Jackson  v.  Phil- 
lips, 14  Allen,  572,  and  cases  there  cited. 

On  both  grounds  the  entry  must  be,  judgment  for  the 
tenant. 


Rule  in  Shelley's  Case. 

Carson  v.  Fuhs,  131  Pa.  St.  256;  18  A.  1017. 

Appeal  from  court  of  common  pleas,  Allegheny  County  ;  J.  W". 
F.  White,  Judge. 

Ejectment  by  William  Carson  and  Eliza  his  wife,  and  others, 
against  Adam  Fuhs  and  others.  Verdict  for  plaintiffs,  subject 
to  the  opinion  of  the  court  upon  the  question  of  law  reserved. 
The  question  of  law  reserved  was  decided  in  favor  of  defend- 
ants, and  judgment  was  entered  for  defendants  non  obstante 
veredicto.  Plaintiffs  appeal.  The  following  is  the  opinion  of 
the  court  below,  deciding  the  re>erved  question:  — 

"The  plaintiffs  are  children  of  Mrs.  Isabella  Hamilton, 
deceased,  who  was  wife  of  Stewart  Hamilton,  and  claim  under  a 


356  REMAIN  I)  KU8. 

deed  ()f  trust  oxi'culed  by  Sli'waiL  ILiinilton  iind  wife  to  their 
S(»n  James  Hamilton,  dated  ISlli  .January,  1>S()7,  for  three  lots  of 
ground  in  Alieirheiiy  t-ity.  The  deed  is  to  James  Hamilton,  his 
lieirs  and  assigns,  in  fee-simple,  with  covenant  of  general  war- 
lanty,  '  in  trust  for  the  uses  hereafter  mentioned,'  in  considera- 
tion of  '  one  (h)llar  and  natural  love  and  aft(!Ction  ami  better 
maintenance  of  the  parties  for  whose  use  this  deed  is  made  in 
trust,'  etc.  The  trust  is  in  these  words:  '  In  trust,  no\ert lieless, 
for  the  use  of  the  said  Isabella  Hamilton  during  her  natural  life, 
and  at  her  decease  then  to  her  heirs  in  fee,  share  and  shaie 
alike,  and  in  the  meantime  to  allow  and  permit  her  to  receive 
to  her  own  use  the  rents,  issues  thereof,  subject  to  the  taxes 
and  costs  of  executing  this  said  trust.'  Nintj  months  there- 
after, 30th  October,  1867,  James  Hamilton  conveyed  back 
the  premises  to  Stewart  Hamilton,  describing  himself  as  '  trustee 
of  Isabella  Hamilton  and  her  heirs,'  in  consideration  of  '  one 
dollar,'  but  making  no  reference  to  the  trust-deed,  or  his 
title,  and  conveying  in  the  usual  form,  as  if  the  property 
was  hiid  own,  with  general  warranty,  signing  his  name  simply, 
*  James  Hamilton.'  Stewart  Hamilton  and  Isabella,  his  wife, 
subsequently,  by  deeds  dated  25tli  February,  1868,  and  12th 
January,  1869,  conveyed  two  of  the  lots  to  James  Hamilton, 
who  conveyed  to  Adam  Fuhs,  and  then  by  deed  of  3()th  April, 
1874,  Stewart  Hamiltf)n  and  Isal)ella,  his  wife,  conveyed  the 
remainder  to  Adam  Fuhs,  who  thus  claims  title  to  the  whole. 
In  none  of  their  conveyances  is  there  any  reference  to  the 
trust-deed  from  Stewart  Hamilton  and  James  Hamilton.  Isa- 
bella Hamilton  died  8th  July,  1885,  leaving  ten  children, 
and  her  husband,  Stewart  Hamilton,  who  is  still  living.  The 
question  of  law  reserved  is,  what  title  did  Isabella  Hamilton 
take  by  the  trust-deed?  If  she  took  merely  a  life-estate, 
the  plaintifFs  are  entitled  to  recover;  if  a  fee,  either  under 
the  rule  in  Shelley's  Case  or  by  virtue  of  the  statute  of  uses, 
they  are  not.  I  think  no  question  of  estoppel  can  be  raised 
against  the  plaintiffs  during  the  life  of  their  mother.  All 
the  deeds  were  duly  recorded,  before  Adam  Fuhs  bought.  The 
trust-deed  was  directly  in  the  line  of  his  title,  and  he  had 
constructive  notice  of  it.  He  paid  his  purchase  money,  and 
made  improvements  at  his  own  risk.  The  rule  in  Shelley's 
Case  is  firmly  established  as  a  law  of  this  State.  While  it 
is  difficult  to  reconcile  some  of  the  decisions,  the  rule  itself  has 
never  been  denied,  and  no  avowed  effort  made  to  defeat  or 
evade  it.  The  rule,  briefly  stated,  is  this:  When  by  deed  or 
will  an  estate  in  land  is  given  to  one  for  life,  and  at  his  death 
the  remainder  to  his  heirs  in  fee,  the  estate  of  the  life-tenant  is 


RULE  IN  Shelley's  case.  357 

enlarged  to  a  fee ;  the  two  estates  are  merged  in  one,  and  the 
first  taker  takes  the  whole.  The  true  test  in  the  application  of 
the  rule  is,  did  the  grantor  or  donor  intend  that  the  remainder- 
men should  take  as  heirs  of  the  life-tenant?  *  The  thing  to  be 
sought  for  is  not  the  persons  who  are  directed  to  take  the 
remainder,  but  tho  character  in  which  the  donor  intended  they 
should  take.'  Guthrie's  Appeal,  37  Pa.  St.  12.  Not  the  inten- 
tion that  the  first  taker  should  have  only  a  life-estate;  for  that 
intention  must  be  overthrown,  if  apt  words  are  used  to  bring  tho 
case  within  the  rule.  The  word  'heirs'  may  be  limited  or 
modified  by  other  unequivocal  expressions  in  the  deed  or  will, 
and  other  words  than  that  of  '  heirs  '  may  have  the  effect  of 
bringing  the  case  within  the  rule.  *  Any  form  of  words  suffi- 
cient to  show  that  the  remainder  is  to  go  to  those  whom  the  law 
points  out  as  the  general  or  lineal  heirs  of  the  first  taker  will 
enlarge  the  estate  '  of  the  life-tenant  into  a  fee  by  implication. 
Potts' Appeal,  30  Pa.  St.  170;  McKee  v.  McKinley,33  Pa.  St.  93  ; 
Dodson  V.  Ball,  60  Pa.  St.  493;  Yarnall's  Appeal,  70  Pa.  St.  341. 
If  the  deed  we  are  considering  had  been  directly  to  Isabella  Ham- 
ilton *  during  her  natural  life,  and  at  her  death  then  to  her  heirs 
in  fee,  share  and  share  alike,'  there  could  be  no  doubt  she  would 
have  taken  a  fee.  The  added  words,  *  share  and  share  alike,' 
are  not  sufficient  to  take  it  out  of  the  operation  of  tho  rule. 
Physick's  Appeal,  50  Pa.  St.  136  ;  Ogden's  Appeal,  70  Pa.  St. 
501.  But  the  rule  in  Shelley's  Case  does  not  apply  unless  both 
estates  —  for  life  and  remainder  —  are  of  the  same  quality ;  both 
legal  or  both  equitable.  Here  the  legal  estate  under  the  trust- 
deed  is  in  tho  trustee,  and  Isabella  Hamilton  had  only  an  equita- 
ble life  estate.  So  had  the  remainder-man  ;  but,  under  the  stat- 
ute of  uses,  it  became  an  executed  trust  as  to  them,  and  they 
took  the  legal  estate  in  remainder,  if  the  first  taker  had  only  a 
life-estate.  Was  it  a  dry  or  executed  trust,  also,  as  to  her,  so 
that  she  took  the  legal  estate  under  the  statute  of  uses?  A  dry, 
naked  trust,  where  no  duties  are  to  be  performed  by  the  trustee, 
is  a  passive  trust,  and,  as  a  general  rule,  is  executed  by  the  stat- 
ute. Active  trusts,  where  important  duties  are  confided  to  the 
trustee,  —  such  as  renting  and  managing  the  estate,  investing 
money,  distributing  the  proceeds,  etc.,  —  are  not  within  the  opera- 
tion of  the  statute.  Others,  not  strictly  active,  but  passive,  trusts, 
will  be  saved  where  (1)  it  is  necessary  for  the  protection  of  a 
married  woman;  (2)  for  the  protection  of  a  spendthrift  child  ; 
(3)  to  support  contingent  remainder;  (4)  or  to  serve  some 
other  useful  and  lawful  purpose.  As  the  trustee  had  no  duties 
to  perform  under  this  trust,  it  falls  under  the  second  class,  — 
passive  trusts.     The  only  ground  for  contending  it  is  saved  from 


358  REMAINDERS. 

the  operation  of  the  statute  is  that  it  w;i.s  for  the  protection  of  a 
married  woman. 

'*  Mrs.  Isabella  Hamilton  was  the  beneficiary,  and  the  only 
one  intended  to  be  provided  for  by  the  deed  of  trust.  Although 
the  consideration  is  stated  as  *  one  dollar  and  natural  love  and 
affection  and  better  maintenance  of  the  parties  for  whose  use 
this  deed  is  made  in  trust,'  yet  the  only  i)erson  mentioned  as 
interested  in  the  trust,  or  whose  maintenance  is  provided  for,  is 
Isabella  Hamilton.  The  trustee  is  to  '  allow  and  permit  her  to 
receive  to  her  own  use  the  rents  and  issues  thereof,  subject  to 
the  taxes  and  cost  of  executing  this  trust.'  The  object  of  creat- 
ing a  trust  for  a  married  woman  is  to  save  the  property  from  the 
debts  or  control  of  her  husband.  Trusts  for  this  pur[)ose,  or 
for  one  in  immediate  contemplation  of  marriage,  will  be  sus- 
tained. *  When  an  active  trust  is  created,  to  give  effect  to  a 
well-defined  purpose  of  a  testator  in  reference  to  his  family,  the 
trust  must  be  sustained  whether  the  cestui  que  trust  \s  sui  juris 
or  not.'  Barnett's  Appeal,  46  Pa.  St.  392;  Earp's  Appeal, 
74  Pa.  St.  119;  William's  Appeal,  34  Leg.  Int.  297.  But 
even  an  active  trust  ceases  when  there  is  no  longer  any 
purpose  to  serve  by  keeping  it  alive.  If  the  trust  is  simply 
for  the  benefit  of  a  married  woman,  or  one  in  contemplation  of 
marriage,  it  falls  when  she  becomes  discovert,  and  is  not  revived 
by  a  subsequent  marriage.  Bush's  Appeal,  33  Pa.  St.  85; 
Earp's  Appeal,  supra.  Dodson  v.  Ball,  60  Pa.  St.  492,  is  where 
a  single  woman  conveyed  land  to  a  trustee  in  trust  to  permit  her 
to  occupy,  manage,  and  rent  her  premises,  and  take  the  income 
for  her  sole  and  separate  use  for  life,  and  upon  her  decease  to 
convey  the  same  to  such  person  as  she  might  appoint,  or,  in 
default  of  a  will,  to  such  persons  as  would  be  entitled  under  the 
intestate  law,  etc.  She  afterwards  married,  and  her  husband 
died.  By  bill  she  asked  for  reconveyance.  It  was  held  an 
executed  trust,  and  she  entitled  to  reconveyance.  The  opinion 
of  the  court  concludes:  'The  trust  being  passive,  and  the 
trustees  not  needed  to  protect  any  other  interest,  Mrs.  Dodson 
being  sui  juris  and  competent  to  exercise  any  power  which  had 
been  vested  in  the  trustees,  the  ulterior  trust  not  being  intended 
to  protect  any  special  interest,  but  being  exactly  commensurate 
with  her  own  posver  and  estate  as  absolute  owner,  there  is 
no  proper  or  useful  purpose  to  uphold  the  trust,  and  it 
consequently  fell  when  she  became  discovert.'  This  case  was 
not  strictly  a  passive  trust,  for  there  were  certain  duties  to 
be  performed  by  the  trustees.  But  it  fell  with  discoverture. 
Trusts  for  the  '  sole  and  separate  use  of  married  women  have 
been  sustained  in  order  to  effectuate  the  object  of  the  trusts  ; 


RULE  IN  Shelley's  case.  359 

that  is,  save  the  property  from  the  control  or  debts  of  their  hus- 
bands. When  the  husband  dies,  the  trust  falls,  because  there  is 
no  longer  any  necessity  for  it.  Our  married  woman's  act  of 
1848  (secures  to  married  women  the  entire  control  and  manajre- 
meiit  of  their  separate  estate,  and  protects  it  from  the  debts  and 
liabilities  of  their  husbands.  It  accomplished  all  that  could  be 
accomplished  by  a  trust  for  that  purpose.  Hence  such  a  trust 
is  no  longer  of  any  necessity  or  practical  advantage,  and  should 
fall  or  be  considered  an  executed  trust,  as  in  cases  of  discoverture. 
The  trust-deed  in  this  case  was  executed  in  1867,  nine  years 
after  the  passage  of  the  act  of  1848.  It  is,  as  we  have  seen, 
solely  for  the  benefit  of  Mrs.  Isabella  Hamilton,  then  a  married 
woman.  If  the  title  had  been  made  directly  to  her,  she  would 
have  taken  the  property  entirely  free  from  the  control,  debts, 
and  liabilities  of  her  husband.  The  trustee  was  simply  the 
depository  of  the  legal  title,  with  no  duties  whatever  to  per- 
form. It  was  a  dry,  naked  trust.  Mrs.  Hamilton  was  to  receive 
the  rents  and  issues,  subject  to  taxes  and  expenses,  during 
her  natural  life,  and  at  her  death  then  the  property  to 
go  to  her  heirs.  As  there  was  no  useful  purpose  to 
be  served  by  the  trust,  it  was  executed  by  the  statute 
of  uses  and  fell  still-born  at  its  birth.  The  trustees  had 
no  duty  to  perform  during  her  life,  or  at  her  death.  The  trustee 
was  not  required  to  convey.  The  property  went  to  the 
heirs  of  Mrs.  Hamilton  by  virtue  of  the  trustee's  deed  itself. 
Both  estates  —  for  life  and  in  remainder  —  being  legal,  they 
merged,  and  Mrs.  Hamilton  took  the  fee,  under  the  rule  in 
Shelley's  Case.  It  follows  that  Mrs.  Hamilton  and  her  husband 
should  convey  the  fee.  They  might  have  done  that,  perhaps, 
without  a  reconveyance  by  the  trustee  ;  but  after  such  reconvey- 
ance, and  deeds  for  the  fee-simple  duly  executed  by  Mrs.  Ham- 
ilton and  her  husband  for  the  whole  property,  her  children  have 
no  claim  or  interest  in  the  property.  And  now,  January  26, 
1889,  the  question  of  law  reserved  is  decided  in  favor  of  the 
defendant,  and  it  is  ordered  that  judgment  be  entered  for  the 
defendiint  non  obstante  veredicto.  At  request  of  plaintiff's  coun- 
sel, bill  of  exception  sealed  to  the  above  ruling  and  judgment  of 
court." 

Paxson,  C.  J.  Under  any  view  we  may  take  of  this  case,  the 
plaintiff's  cannot  recover  in  this  action.  If  they  are  right  in 
their  contention  that  the  deed  to  James  Hamilton  created  a  valid 
separate  use  trust  in  favor  of  his  mother,  Isabella  Hamilton, 
they  are  not  entitled  to  the  possession  of  the  real  estate  in  con- 
troversy, for  the  reason  that  the  husband  of  Isabella  H.ifnilton 
is     still     living,     and    entitled    to   his    curtesy    therein.     Mrs. 


360  REMAINDERS. 

Hamilton  h;ivin<T  ;in  equitable  estate  in  fee,  her  husband  would 
be  entitled  to  his  life-est:ite.  Dubs  t;.  Dubs,  31  Pa.  St.  149  ; 
Kank  v.  Rank,  120  Pa.  St.  191  ;  13  Atl.  Rep.  827.  We  might 
well  affirm  this  judgment  without  more,  but,  as  we  have  the 
whole  question  before  us,  we  prefer  to  decide  it  now,  to  prevent 
fuither  litigation  in  the  future.  The  trust  contained  in  the  deed 
from  Stewart  Hamilton  ef  nx.  to  James  Hamilton  ia  as  follows: 
•'  In  trust,  nevertheless,  for  the  use  of  said  Isabelhi  Hamilton, 
wife  of  the  said  Stewart  Hamilton,  during  her  natural  life,  and 
at  her  decease  then  to  heirs  in  fee,  share  and  share  alike,  and  in 
the  meantime  to  allow  and  permit  her  to  receive  for  her  own  use 
the  rents,  issues  thereof,  subject  to  the  taxes  and  costs  of  execut- 
ing this  trust."  The  question  is,  what  estate  did  Mrs.  Hamilton 
take  under  this  conveyance?  The  contention  of  the  plaintiffs  is 
that  she  took  out  a  life-estate ;  that  the  deed  created  a  separate 
use  trust  in  her  favor,  which  must  be  supported  for  her  protec- 
tion. It  is  to  be  noticed  that  the  language  does  not  create  a 
technical  separate  use  trust,  nor  is  there  anything  from  which 
we  can  draw  the  inference  that  a  separate  use  trust  was  intended 
by  the  grantors,  or  even  contemplated  by  them.  It  must  not  be 
overlooked  that  the  deed  to  James  Hamilton  was  made  by  Mrs. 
Isal)ella  Hamilton  and  her  husband,  in  trnst  for  the  said  Isabella. 
Had  there  been  a  conveyance  to  her  direct,  instead  of  to  a 
trustee,  there  can  be  no  doubt  that  it  would  have  passed  the  fee. 
The  added  words,  '<  share  and  share  alike,"  referring  to  the 
*' heirs,"  would  not  have  been  sufficient  to  take  it  out  of  the 
rule.  Physick's  Appeal,  50  Pa.  St.  136;  Ogden's  Appeal,  70 
Pa.  St.  501.  Does  the  fact  thatatrust  was  interposed  make  any 
difference?  This  depends  upon  the  character  of  the  trust.  If 
it  is  a  separate  trust,  or  one  which  it  is  necessary  to  preserve 
for  any  purpose,  Mrs.  Hamilton's  interest  would  be  limited 
to  a  life  estate.  As  was  said  bv  our  Brother  Sterrett,  in 
Little  V.  Wilcox,  119  Pa.  St.  448  ;"l3  Atl.  Rep.  475  ;  "  A  trust 
is  never  executed  by  the  statute  when  its  preservation  is  neces- 
sary, either  for  the  protection  of  a  feme  covert,  spendthrift  child, 
or  to  su[)port  a  contingent  remainder,  or  to  serve  some  other 
useful  and  lawful  purpose."  We  see  no  such  purpose  to  serve 
in  this  case.  It  is  not,  as  before  observed,  a  separate  use  trust 
in  terms.  It  provides  no  protection  or  restriction  , which  is  not 
given  by  the  act  of  1848;  and  while  separate  use  trusts  may 
be  created  since  the  passage  of  that  act,  and  may  after 
be  very  useful  to  protect  a  woman  from  the  importunities  of 
her  husband,  or  from  her  own  weakness,  we  are  not  dis- 
posed to  strain  a  point  to  create  such  trust  by  mere  implica- 
tion.    The  trustee  in  this  case  had  no  active  duties  to  perform. 


EFFECT   OF    ABOLITION    OF    RULE    IN    SHELLEY'S    CASE.       361 

It  is  a  passive,  dry  trust,  with  no  interest  to  guard,  no  rights  to 
protect.  In  such  case  the  cestui  que  trust  is  entitled  to  a  recon- 
veyance of  the  legal  title.  Equity  will  consider  that  done  which 
ought  to  be  done,  and  declare  the  legal  title  in  Mrs.  Hamilton. 
It  then  comes  within  the  rule  in  Shelley's  Case,  and  the  life- 
estate  and  remainder  coalesce,  the  effect  of  which  is  to  give  the 
fee  to  Mrs.  Hamilton.  We  need  not  pursue  the  subject  further, 
in  view  of  the  careful  and  elaborate  opinion  of  the  learned  judge 
below. 

Judgment  affirmed. 


Effect  of  Abolition  of  Rule  in  Shelley's  Case. 

Godman  v.  Simmons,  113  Mo.  122;  20  S.  W.  972;  compare  Moore  v.  Littell,  41 

N.  Y.  66. 

Brace,  J.  This  is  an  action  in  ejectment,  in  which  the  plain- 
tiffs seek  to  recover  an  undivided  three-fourths  of  a  tract  of  land 
in  Saline  County.  The  answer  admitted  possession,  and  denied 
all  the  other  material  allegations  of  the  petition.  The  case  was 
tried  before  the  court  without  a  jury,  the  judgment  was  for  the 
defendants,  and  the  plaintiffs  appeal. 

Elizabeth  O'Bannon  is  the  common  source  of  title.  On  the 
26th  day  of  October,  1868,  she  and  her  husband  duly  executed, 
acknowledged,  and  delivered  a  warranty  deed  conveying  the 
premises  to  Mary  R.  Godman  *'  for  and  during  her  natural  life, 
and  with  remainder  to  the  heirs  of  her  body.  *  *  *  Xo 
have  and  to  hold  the  premises  hereby  conveyed,  with  all  the 
rights,  privileges,  and  ap[)urtenances  thereto  belonging,  or  in 
any  wise  appertaining,  unto  the  said  Mary  E..  Godman  during 
her  natura"  ife,  and  then  to  the  heirs  of  her  body  and  assigns 
forever."  The  plaintiffs,  William  C.  Godman,  Josephine  C. 
Way,  and  Mattie  B.  Naylor,  are  the  children  of  the  said  Mary 
R.  Godman,  who  died  in  March,  1888.  Besides  the  plaintiffs, 
the  said  Mary  R.  Godman  had  three  other  children, — Burton 
L.  Godman,  who  died  in  1876;  Mollie,  who  intermarried  with 
one  Emmerson,  and  afterwards  died  in  February,  1880,  leaving 
one  child,  Edward,  surviving  her;  and  Beal  Godman,  who  died 
in  September,  1888,  without  lineal  descendants.  The  plain- 
tiffs, after  showing  these  facts,  rested,  and  the  defendants, 
upon  their  part,  introduced  in  evidence  a  deed  of  trust  exe- 
cuted by  Melvin  Godman  and  the  said  Mary  R.  Godman,  his 
wife,  the  said  William  C.  Godman  and  wife,  John  B.  Way 
and  the  said  Josephine  C.  Way,  his  wife,  and  the  said  Burton 
L.    Godman    and    Mollie     Godman,    to    Samuel    Boyd,    trus- 


362  REMAINDERS. 

tee,  to  secure  the  payment  of  a  promissory  note  to  one  George 
Farlow  for  $1,300,  due  one  year  after  date,  with  power  of  sale 
upon  default  in  payment  of  the  debt  at  maturity.  This  deed 
was  dated  April  4,  187(5.  The  defendants  also  offered  the  note, 
secured  by  said  deed  of  trust,  which  is  signed  l)y  all  of  the 
urantors  therein.  The  defendants  next  offered  a  deed  from 
Samuel  Boyd,  trustee,  to  Henry  Emmerson,  dated  October  10, 
1877.  This  deed  was  made  in  j)ursn:inco  of  a  sale  under  the 
power  contained  in  the  foregoing  deed  of  trust.  The  defendants 
next  offered  a  deed  dated  October  19,  1878,  containing  cove- 
nants of  general  warranty,  from  Henry  Emmerson  and  wife 
to  defendant  Henry  C.  Simmons,  and  then  a  deed  dated  Jan- 
uary 27,  1880,  from  Henry  C.  Simmons  and  wife  to  Melvin 
Godman.  Next  a  deed  of  trust  of  same  date  from  Melvin  God- 
man  and  wife  to  W.  R.  Gist,  trustee  to  secure  an  indebtedness 
due  to  said  H.  C  Simmons,  and  a  deed  from  Gist,  trustee, 
under  the  power  of  sale  contained  in  said  deed  of  trust,  to  Henry 
C.  Simmons,  dated  September  1,  1886.  The  defendants  next 
offered  a  deed  dated  April  3,  1880,  from  Beal  Godman  to  Mel- 
vin Godman,  and  deed  dated  May  23,  1881,  from  Mattie  B. 
Naylor  and  husband,  conveying  her  undivided  interest  in  the 
land  to  Melvin  Godman.  The  plaintiffs  objected  to  the  intro- 
duction of  each  of  the  foregoing  deeds  on  the  ground  that  same 
"  was  incompetent,  irrelevant,  and  immaterial,"  and  the  objec- 
tion in  each  instance  was  overruled  by  the  court.  They  also 
asked  declarations  of  law  in  effect  excluding  said  deeds,  and 
declaring  that  the  plaintiffs  had  the  title  to  the  land  sued  for, 
which  instructions  or  declarations  of  law  the  court  refused  to 
give,  and  plaintiffs  excepted. 

1.  It  is  provided  by  the  statute  of  this  State  that  "  when  a 
remainder  shall  be  limited  to  the  heirs,  or  heirs  of  the  body,  of 
a  person  to  whom  a  life  estate  in  the  same  premises  shall  be 
given,  the  person  who  on  the  termination  of  the  life  estate, 
shall  be  the  heir,  or  heirs  of  the  body,  of  such  tenant  for  life, 
shall  be  entitled  to  take  as  purchasers  in  fee  simple,  by  virtue 
of  the  remainder  so  limited  to  them."  Rev.  S.  1889,  §  8838; 
Gen.  St.  1865,  p.  442,  §  6.  The  deed  of  Elizabeth  O'Bannon 
came  before  us  for  construction  in  the  recent  case  of  Emmerson 
V.  Hughes  (Mo.  Sup.),  19  S.  W.  Rep.  979,  and  we  there  held 
*'  that  the  statute  just  quoted  converted  the  estate  tail  created 
by  the  deed  at  common  law  into  a  life  estate  in  the  first  taker, 
with  a  contingent  remainder  in  fee  simple  in  favor  of  those  per- 
sons who  should  answer  the  description  of  heirs  of  her  body;  " 
and  as  no  one  can  be  the  heir  of  a  living  person,  it  could  not  be 
told  who  the  heirs  of  the  body  of  Mary  R.  Godman  would  be 


EFFECT   OP    ABOLITION    OF    RULE    IN   SHELLEY's    CASE.       363 

until  her  (leiitli,  when  che  contingent  remainder  in  fee  under  the 
deed  would  vest;  and  that  Mrs,  Emmerson,  not  being;  alive  at 
that  time,  took  no  estate  under  the  deed  of  Mrs.  O'Bannon, 
and  conveyed  none  by  the  deed  of  trust  to  Boyd,  made  in  her 
life-lime  before  the  death  of  Mm.  Godman.  In  her  ca.se  she 
had  no  vested  estate  at  the  time  the  deed  was  made,  and  no 
estate  ever  vested  afterwards.  Now,  while  the  plaintiffs  aiid 
Beal  Gddman  were  in  the  same  relation  to  the  title  to  the 
premises  as  Mrs.  Emmerson  at  the  time  they  made  their  deeds, 
they  survived  their  mother,  and  their  remainder  contingent  dur- 
ing the  life-time  of  the  mother  became  a  vested  estate  at  her 
death  ;  and  the  main  question  in  the  case  is,  did  this  estate  pass 
by  their  deeds?  The  deed  of  trust  executed  by  plaintiffs  Will- 
iam C.  Godu)an  and  Josephine  C.  Way  purported  to  con- 
vey to  Boyd,  trustee,  the  premises  in  fee  simple,  and  contained 
the  statutory  covenants  implied  by  the  use  of  the  words,  "  grant, 
bargain  and  sell."  The  deed  of  plaintiff  Mattie  B.  Naylorand  hus- 
band purported  to  "  grant,  bargain,  and  sell  all  their  interest  in 
the  premises  to  Melvin  Godman.  In  the  language  of  the  deed: 
"  The  interest  hereby  intended  to  be  conveyed  is  the  entire  in- 
terest of  Mattie  B.  Naylor  in  the  above-described  lands  as  one 
of  the  daughters  of  Mary  R.  Godman,  whether  present  or  pros- 
pective, vested  or  contingent,  and  especially  any  remainder  she 
may  now  have,  or  hereafter  be  entitled  to,  in  said  lauds  under  a 
certain  deed  made  bv  M.  W.  O'Bannon  and  wife  to  said  MaiyR. 
Godman,  of  date  October  26,  1868."  The  deed  of  Beal  God- 
man, as  party  of  the  first  part,  purp(n'ted  to  "  remise,  release, 
and  forever  quitclaim  "  unto  the  said  Melvin  Godman,  party  of 
the  second  part,  "  all  of  his  right,  title,  interest,  and  estate  in 
ex[)ectancy  in  and  to"  the  premises,  to  have  and  to  hold  the 
same,  "  so  that  neither  said  party  of  the  first  part,  nor  his  heirs, 
nor  any  other  person  or  persons  for  him  or  in  his  name  or  be- 
half, shall  or  will  claim  or  demand  any  right  or  title  in  the  afore- 
said premises,  or  any  part  thereof,  but  they  and  every  one  of 
them  shall  by  these  presents  be  excluded  and  forever  barred." 
At  the  time  these  deeds  were  made  the  plaintiffs,  William  C. 
Godman,  Josephine  C.  W^ay,  and  Mattie  B.  Naylor,  and  their 
brother,  Beal  Godman,  each  had  an  intere&t  in  this  real  estate. 
The  estate  they  were  to  have,  however,  was  contingent  upon  the 
death  of  their  mother  and  their  surviving  her.  Thefirstevent  was 
sure  to  happen,  and  they  were  sure  to  take  if  they  did  survive  her  ; 
but  whether  they  would  survive  her,  and  thus  become  heirs 
of  her  body,  was  uncertain,  and  hence  the  interest  they  had  was 
no  more  than  a  contingent  remainder,  and  a  contingent  remain- 
der of  that  class  that  grows  out  of  the  uncertainty  of  the  persons 


364  REMAINDERS. 

to  take  at  the  termination  of  the  life  estate.  Such  an  interest 
was  not  alienable  at  common  hiw  before  the  contingent  hap- 
pened. 2  Washb.  Real  Prop.  (5th  E(1.),P-  264,  §G;  Tied. 
Real  Prop.  (2(1  Ed.),  §  411 ;  6  Amer.  &  Eng.  Enc.  Law,  p.  900. 
This  rule  of  the  common  law  seems  to  have  been  abolished  in 
England  by  8  &  9  Vict.  c.  lOG,  §  6,  providing  that  ♦'  after  the 
1st  day  of  October,  1845,  a  contingent,  an  executory,  and  a 
fnture  interest,  and  a  possibility  coni)led  with  an  interest,  in  any 
tenements  or  hereditaments  of  any  tenure,  whether  the  object  of 
the  gift  or  limitation  of  such  interest  or  possibility  be  or  be  not 
ascertained,  also  a  right  of  entry,  whether  immediate  or  future, 
and  whether  vested  or  contingent,  into  or  upon  any  tenements 
or  hereditaments  in  England  of  any  tenure,  may  be  disposed  of 
by  deed,"  and  by  statute  in  New  York,  Michigan,  Minnesota, 
and  Wisconsin,  making  all  expectant  estates  alienable  in  the 
same  manner  as  estates  in  possession.  2  Washb.  Real  Prop.,  p. 
267,  §  5.  In  this  State,  while  we  have  no  similar  express  statute, 
our  statutes  do  provide  that  *«  conveyances  of  lands,  or  of  any 
estate  or  interest  therein,  may  be  made  by  deed"  (Rev.  St. 
1889,  §  2395);  that  all  estates  and  interest  in  land  are  subject 
to  be  seized  and  sold  under  execution  (icZ.,  §§  4915,  4917)  ; 
and  that  any  person  having  an  interest  in  real  estate  whether 
the  same  be  present  or  future,  vested  or  contingent,  can  come 
into  partition  for  the  disposal  of  such  interest  {Id.,  §§  7136, 
7137).  Reinders  v.  Koppelmann,  68  Mo.  482.  This  rule  of 
the  common  law  seems  to  be  inconsistent  with  the  general  scope 
of  our  statutes  regulating  the  disposal  of  real  estate,  and  not  in 
harmony  with  the  genius  and  spirit  of  our  institutions,  which 
brook  no  restraint  upon  the  power  of  the  citizen  to  alienate  any 
of  his  property.  We  are  pre-eminently  a  trading  and  commer- 
cial people;  our  lands  are  our  greatest  stock  in  trade,  and  the 
whole  tendency  of  our  laws  is  to  encourage  and  not  restrain  their 
alienation.  The  spirit  and  genius  of  the  feudal  system  and  the 
common  law  was  exactly  the  reverse;  and  we  do  not  think  this 
now  almost  obsolete  common-law  rule  ought  to  obtain  in  this 
State. 

The  point  in  question,  so  far  as  we  are  advised,  has  never  been 
passed  upon  directly  in  our  appellate  courts  ;  but  the  St.  Louis 
court  of  appeals  had  occasion  to  consider  this  rule  in  Lackland 
V.  Nevins,  3  Mo.  App.  335,  and  that  court,  speaking  through 
Judge  Bakewell,  said  of  it:  "The  doctrine  that  contingent  in- 
terests in  real  estate  cannot  be  conveyed  by  law  remained  as  one 
of  the  last  relics  of  a  system  of  which  the  policy  was  to  hinder 
the  alienation  of  land.  It  is  now  done  away  with  in  England  by 
statute.     It  is  contrary  to  the  policy  of   our   system,  and    our 


EFFECT    OF    ABOLITION    OF    RULE    IN    SHELLEY's    CASE.       3fi5 

statute  of  conveyances,  which  says  that  '  conveyances  of  hind,  or 
of  any  estate  or  interest  therein,  may  be  made  by  deed  exe- 
cuted,' "  etc.  A  contingent  remainder  is  not  an  estate  in  hinds, 
since  it  is  merely  the  chance  of  havins:,  but  it  is  an  interest  in 
laml,  and  one  which  long  remained  inalienable,  simply  because 
it  had  never  been  thonght  worth  legislating  about  ;  so  that,  as 
Williams  says  (Williams,  Kcal  Prop.  257),  "  the  circumstance 
of  a  contingent  remainder,  having  been  so  long  inalienable  at 
law,  was  a  curious  relic  of  the  ancient  feudal  system."  Our 
statute  is  careful  to  make  alienable  by  deed,  not  only  estates, 
but  also  interests  in  land,  which  covers  the  case  of  executory 
devises  and  contingent  remainders  as  fully  as  if  they  were 
named.  In  White  v.  McPheeters,  7o  Mo.  286,  this  court 
seemed  to  entertain  no  doubt  that  under  our  statute  in  regard  to 
executions,  which  declares  that  the  term  "real  estate"  as 
therein  used  "  shall  be  construed  to  include  all  estate  and  inter- 
est in  lands,  tenements,  and  hereditaments,"  the  sale  of  a 
remainder  under  execution,  whether  it  be  regarded  as  vested  or 
contingent,  was  authorized.  It  would  be  remarkable,  indeed, 
if  it  were  the  law  that  a  citizen  had  something  which  by  the  law 
of  the  land  he  could  not  sell  and  transfer  himself,  but  which 
the  sheriff,  under  execution,  could  sell  and  transfer  for  him. 
This  ancient  common-law  rule  that  contingent  remainders 
are  inalienable,  like  the  rule  that  choses  in  action  are  not 
assignable,  does  not  obtain  in  this  State,  not  because 
there  has  been  a  positive  statute  abolishing  these  rules,  but 
because  they  are  out  of  harmony  with  its  general  aiBrmative 
statute  upon  these  subjects,  and  long  since  have  ceased,  if  they 
ever  did  exist,  as  rules  governing  the  action  of  its  citizens  in  the 
business  relations  of  life.  If,  then,  the  contingent  interests  of 
the  said  three  plaintiffs  and  of  the  said  Beal  Godman  in  the 
premises  were  the  subject  of  grant  by  deed  duly  executed  in 
accordance  with  the  requirements  of  our  laws,  the  effect  of  these 
conveyances  was  to  transfer  to  the  grantees  such  interests,  with 
all  their  incidents,  to  hold  in  the  same  right  and  to  the  same 
extent  as  they  were  held  by  the  grantors  before  being  con- 
veyed,—  the  grantees  were  thereby  put  in  their  shoes.  If  the 
grantors  died  before  the  termination  of  the  life-estate,  the 
grantees  took  nothing.  If  they  survived  their  mother,  the 
grantees  took  just  what  the  grantors  would  have  taken  if  the 
conveyance  had  not  been  made.  There  can  be  no  doubt  that 
such  was  the  intention  of  the  parties,  and  such  ought  to  be,  and 
we  believe  is,  the  effect  of  these  conveyances  under  the  laws  of 
this  State.  This  being  so,  the  defendant,  by  a  regular  chain 
of  conveyances,  having  acquired  the  title  of  the  grantees  in  these 


366  USES    AND   TRUSTS. 

deeds  to  tho  premises,  the  judtrment  of  the  circuit  court  was  for 
the  right  party.  There  was  some  evidence  pro  and  con  upon 
the  question  of  the  delivery  of  the  deed  from  Bcal  Godman. 
It  is  evident  from  the  instructions  and  finding  that  the  court 
must  have  found  this  question  of  fact  for  the  defendants,  and 
•IS  I  here  was  evidence  tending  to  support  that  finding,  its  judg- 
ment thereon  is  final. 

The  judgment  is  affirmeti.     All  concur. 


CHAPTER    XIII. 

USES   AND   TRUSTS. 


McKenrie  v.  Sumner,  114  N.  C.  425;  19  S.  E.  S^S. 

Faber  v.  Police,  10  S.  C.  37G  (1877). 

Hanks  V.  Folsom,  11  Lea,  555. 

Buffington  v.  Maxara,  152  Mass.  477;  25  N.  E.  975. 

Burdette  v.  May,  100  Mo.  13;  12  S.  W.  1056. 

Wemyss   v.  White,  159  Mass.  484;   34  N.  E.  718. 

Hutchins  v.  Van  Vechten.  140  N.  Y.  115;  35  N.  E.  446. 

Brandon  v.  Carter,  119  Mo.  572;  24  S.  W.  1035. 

Passive  Use  to  Married   Women   Wlieu  Held  to  Be  Her  Sepa- 
rate Estate  and  Unexecuted  by  tlie  Statute  of  Uses. 

McKenzie  v.  Sumner,  114  N.  C.  425;   19  S.  E.  375. 

Appeal  from  superior  court,  Rowan  County;  Jacob  Battle, 
Judge. 

Bill  in  equity  by  C.  H.  McKenzie  and  wife  against  Julian  E. 
Sumner.  From  a  decree  for  plaintiffs,  defendant  appeals. 
AflBrmed. 

Thomas  J.  Sumner  devised  to  defendant  certain  land  in  trust 
for  plaintiff,  "  to  have  and  to  hold,  to  her  and  her  heirs,  in  fee 
simple,  forever."  He  also  bequeathed  to  defendant,  in  trust  for 
plaintiff,  fifty  shares  of  stock  in  a  manufacturing  company. 
Plaintiff  is  a  married  woman,  and  sues  to  have  the  legal  title  to 
this  property  vested  in  her,  and  the  trust  terminated. 

Shepherd,  C.  J.  As  to  the  real  estate  devised  to  the  defend- 
ant for  the  benefit  of  the  plaintiff,  there  is  no  reason  why  the 
legal  title  is  not  vested  in  the  plaintiff  by  the  statute  of  uses,  as 
the  land  is  not  conveyed  to  her  "  sole  and  separate  use  "  (see 
authorities  collected  in  Malone  Real  Prop.  Tri.  544),  nor  is  the 
trustee  charged,  in  any  manner  whatever,  with  any  special  duties 
in  respect  to  the  same.  The  case  does  not  fall  within  either  of 
the  three  well-known  exceptions  to  the  operation  of  the  statute, 
and  it  would  seem  clear  that  the  legal  estate  is  executed  in  the 


CONTINGENT  USE,  DEFEATED  BY  LIVERY  OF  SEISIN.  367 

plaintiff.  1  Perry  Trusts,  298,  and  the  numerous  authorities 
cited  in  the  note.  The  statute,  however,  does  not  apply  to  per- 
sonal property,  such  as  notes  and  bank  stock;  and  the  legal 
title  remains  in  the  trustee  until  it  is,  in  some  way,  transferred 
to  the  equitable  owner.  Is  there  any  reason  why  the  court,  ex- 
ercising its  equitable  jurisdiction,  should  not  hiive  directed  the 
assignment  of  the  legal  title  in  this  instance?  We  can  see  none. 
The  plaintiff  being  the  absolute  equitable  owner,  there  are  no 
ulterior  limitations  to  be  protected;  and  under  the  terms  of  the 
will  the  trustee  has  nothing  but  a  bare,  naked,  legal  estate,  un- 
accompanied, as  we  have  remarked,  with  a  single,  specified  duty. 
As  the  plaintiff's  separate  estate  is  fully  protected  against  the 
interference  of  her  husband  by  the  provisions  of  the  constitu- 
tion, and  as  the  trustee  has  no  power  to  withhold  from  her 
either  the  property  or  its  income,  we  are  unable  to  see  why  the 
legal  title  should  remain  in  him,  unless  it  be  to  enable  him  to 
charge  the  5  per  cent  commissions  which  he  claims  for  ♦'  simply 
collecting  and  paying  over  the  dividends  upon  the  stock."  We  do 
not  deem  it  necessary  to  enter  into  an  elaborate  discussion  of  the 
subject,  but  will  simply  refer  to  the  following  authorities,  which, 
although  ))erhaps  not  exactly  in  point,  fully  sustain,  upon  prin- 
ciple, the  ruling  of  his  honor  :  Turnage  v.  Green,  2  Jones  Eq.  63  ; 
Battle  V.  Petway,  5  Ired.  576;  Jasper  v.  Maxwell,  1  Dev.  Eq. 
358.  We  will  add  the  following  extract  from  Lewin  on  Trusts 
(page  18)  :  "  The  simple  trust  is  where  property  is  vested  inone 
person  upon  trust  for  another,  and  the  nature  of  the  trust,  not 
being  prescribed  by  the  settler  [and  such  is  the  case  here],  is  left 
to  the  construction  of  law.  In  this  case  the  cestui  que  trust  has 
jus  habendi,  or  the  right  to  be  put  into  actual  possession  of  the 
property,  and  jus  disponendi,  or  the  right  to  call  upon  the  trus- 
tee to  execute  conveyances  of  the  legal  estate  as  the  cestui  que 
trust  directs."  This  is  so  clearly  a  simple  trust  that,  under  our 
decisions,  the  property,  prior  to  the  present  constitution,  would 
have  belonged  to  the  husband.  Ashcraft  v.  Little,  4  Ired.  Eq. 
236;  Heartman  v.  Hall,  3  Ired.  Eq.  414.  We  have  examined 
the  authorities  cited  by  the  intelligent  counsel  for  the  appellant, 
l)ut  they  do  not  satisfy  us  that  the  judgment  below  was  erro- 
neous.    The  judgment,  in  all  respects,  is  aflSrmed. 


Contingent    Use,    Defeated    by    Livery    of    Seisin    by  Tenant 

for   Life. 

Faber  v.  Police,  10  S.  C.  376  (1877). 

Opinion  by  McIver,  A.  J.     C.  H.  Faber,  by  his  last  will  and 
testament,  devised  the  land  in  question  to  certain  trustees  in  trust 


368  USES    AND    TUUST8. 

for  the  use  of  his  sou  John  Lewis  Faber,  for  his  life,  and  from 
and  immediately  after  the  doath  of  his  son  in  trust  for  the  hiw- 
ful  issue  of  said  son  living  at  the  time  of  his  death;  and  in  case 
of  his  death  without  leaving  issue  living  at  the  time  of  his  death, 
then  to  his  residuary  legatees  and  devisees.  The  testator  died 
leaving  his  widow  and  his  son  John  Lewis  Faber  as  his  only 
heirs  at  law.  On  the  1st  of  July,  1843,  John  Lewis  Fal)ef, 
being  then  of  age  and  in  possession  of  the  premises,  conveyed 
the  same  by  deed  of  feoffment  and  livery  of  seisin  to  one 
Folker,  who  on  the  next  day  reconveyed  the  same  to  the  said 
John  Lewis  Faber  in  fee  simple,  and  a  few  days  thereafter 
the  widow  of  the  testator  released  all  her  right  in  the  premises 
to  John  Lewis  Faber.  At  the  time  of  the  execution  of  this 
deed,  John  Lewis  Faber  had  never  been  married,  but  he  subse- 
quently married  and  now  has  three  children,  all  of  whom  are 
minors,  Ou  the  sixth  of  February,  1851,  John  Lewis  Faber 
conveyed  the  premises  to  his  mother,  who  died  intestate 
some  time  in  the  year  1851,  leaving  as  her  sole  heir-at-law 
her  son,  the  said  John  Lewis  Faber.  No  letters  of  administra- 
tion upon  her  estate  have  ever  been  taken  out.  On  the  19th  of 
July,  1875,  the  defendant,  J.  G.  Police,  contracted  to  purchase 
from  the  plaintiff,  John  Lewis  Faber,  the  said  premises,  but 
afterwards  declined  to  accei)t  a  fee  simple  interest.  This 
action  was  then  brought  to  recover  damages  for  the  breach  of 
such  contract,  the  real  object  being  to  obtain  the  decision  of  the 
court  as  to  the  validity  of  the  title. 

The  appellant  contends:  1st.  That  the  estate  limited  to  the 
issue  of  John  Lewis  Faber  is  vested  and  not  a  contingent  re- 
mainder, and  therefore  the  remainder  was  not  barred  by  the  deed 
of  feoffment  and  livery  of  seisin.  Questions  of  this  kind  are  in- 
volved in  no  little  difficulty  and  uncertainty,  owing  mamly,  as  we 
think,  to  the  efforts  which  the  courts  have  made  to  construe  lim- 
itations, so  as  to  constitute  vested  instead  of  contingent  remain- 
ders,—  the  rule  being,  as  stated  by  Kent  (4  Com.  203)  that 
"the  law  favors  vested  estates,  and  no  remainder  will  be  con- 
strued to  be  contingent  which  may,  consistently  with  the  inten- 
tion, be  deemed  vested."  This  rule  by  its  very  terms  admits, 
as  it  should  do,  the  paramount  importance  of  the  intention  of  the 
testator,  which  must  necessarily  override  every  other  rule  and  be 
the  governing  principle,  otherwise  the  court  instead  of  the  tes- 
tator would  make  the  will.  Hence,  when  the  testator's  intention 
can  be  discovered,  it  must  necessarily  be  carried,  unless  it  is 
inconsistent  with  the  law  of  the  land.  In  looking  for  this  inten- 
tion we  must  be  guided  by  the  words  which  the  testator  has  used, 
reading  them  in  the  light  of  established  principles  of  law.     Look- 


CONTINGENT   USK,  DKFEATEl)    BY    LIVERY    OF    SEIZIN.        369 

ing,  then,.at  the  clause  of  the  will  under  consideration  in  this  light, 
we  think  it  clear  that  the  remainders  created  are  contingent  and 
not   vested    remainders.      It    is  very   clear,  from  the  language 
used,  that  the  testator  did  not  intend  that  the  issue  should  take 
the  estate  in  remainder  absolutely  and  at  all  events,  but  only  on 
a  contingency  —  that  of  their  surviving  their  father;   and  it  is 
equally  clear  that  he  did  not  intend  that  the  residuar}/  legatees 
and  devisees  should  take  the  estate  in  remainder  absolutely  and 
at  all  events,  but  only  on  a  contingency  — that  of  the  son  dying 
without  leaving  issue  living  at  the  time  of  his  death.     There  is 
no  language  in  the  will  which  would  convey  the  idea  that  the  tes- 
tator intended  that  either  class  of  remainder-men  should  be  in- 
vested with  an  absolute  right  with  only  the  enjoyment  in  posses- 
sion postponed  to  a  future  period  l)ut  is  made  to  depend  upon 
an   uncertain   event.     This  manifest  intention  of  the  testator  is 
not  only  not  inconsistent  with  any  of  the  rules  of  law,  but  on  the 
contrary,  as  we  shall  see,  is  in  strict  conformity  with  such  rules. 
According  to  the  elementary  writers  a  vested  remainder  is  one 
which   is   limited  to  an  ascertained  person  in  being,  whose  right 
to  the  estate  is  fixed  and  certain,  and  does  not  depend  upon  the 
happening  of  any  future  event,  but  whose  enjoyment  in  posses- 
sion is  postponed  to  some  future  time.     A  contingent  remainder 
on  the  other  hand  is  one  on  which  is  limited  to  a  person  not  in 
being  or  not  ascertained  ;  or  if  limited  to  an  ascertained  person, 
it  is  so  limited  that  his  right  to  the  estate  depends  upon  some 
contingency  in  the   future  so  that  the  most  marked  distinction 
between  the  two  kinds  of  remainders  is  that  in  the  one  case  the 
right  to  the  estate  is  tixed  and  though  the  right  to  the  possession 
is  deferred  to  some  future  period;   while  in  the  other  the  right 
to  the  estate  as  well  as  the  right  to  the  possession  of  such  estate  is 
not  only  deferred  to  a  future  period  but  is  dependent  upon  the 
happening  of    some  future  contingency.     As  it  has  been   well 
expressed,  *'  it  is  not  the  uncertainty  of  the  estate  in  the  future 
but  the  uncertainty  of  the  right  to  such  enjoyment  which  marks 
the  difference  between  a  contingent  and  a  vested  remainder." 

Keeping  in  mind  these  principles,  which  are  so  well  estab- 
lished as  to  need  no  citations  of  authority  to  support  them,  and 
rememberino;  that  the  estate  in  remainder,  whether  vested  or 
contingent,  must  necessarily  have  been  created  at  the  same 
time  that  the  particular  estate  upon  which  it  rests  passed  out 
of  the  testator,  we  will  find  no  difficulty  in  determining  the 
nature  of  the  estate  in  remainder  credited  by  the  will  under 
consideration.  These  estates,  as  well  the  particular  estate 
for  the  life  of  John  Lewis  Faber  as  the  estate  in  remainder  to 
his  issue,  and  in  default  of  such  issue  to  the  residuary  legatees 

2i 


<570  USKS    AND    TRUSTS. 

and  devisees,  passed  out  of  the  testator  at  the  time  of  his 
death  —  the  time  when  his  will,  the  instrument  by  which  the 
estates  were  created,  speaks.  Then  it  was  that  these  estates 
were  created,  and  to  that  point  of  time  must  wo  look  to  deter- 
mine their  character.  It  is  very  clear  that  at  Ihut  time  it  was 
wholly  uncertain  who  would  be  the  persons  to  take  at  the  tcrmi- 
Dution  of  the  particular  estate.  The  life  tenant  then  had  no 
issue,  and  it  was,  of  course,  uncertain  whether  he  would  ever 
have  any  ;  and  as  to  the  issue  which  he  has  sudsequently  had, 
it  is  yet  uncertain  whether  any  of  them  will  be  living  at  his  death, 
and  the  same  uncertainty  exists  as  to  whether  the  residuary 
legatees  and  devisees  will  ever  have  the  right  to  take.  It  is 
manifest,  therefore,  that  at  the  time  these  estates  were  created, 
as  well  as  now,  it  is  altogether  uncertain,  not  merely  who  will, 
at  the  termination  of  the  life  estate,  be  entitled  to  enjoy  in 
possession  the  remainder,  but  who  has  now  the  right  to  the 
future  enjoyment  of  such  estate.  The  present  issue  cannot  say 
that  they  have  any  such  fixed  and  certain  right,  because  their 
right  depends  upon  a  future  contingency  — that  of  the  life 
tenant  dying  leaving  lawful  issue  —  and  they  may  all  die  before 
the  life  tenants.  Nor  can  the  residuary  legatees  claim  any  such 
right,  for  their  right  also  depends  upon  a  future  contingency  — 
th«  death  of  the  life-tenant  without  leaving  lawful  issue — and 
they  cannot  claim  that  they  have  now  a  fixed  and  certain  right 
to  the  possession  when  such  possession  shall  become  vacant  by 
the  death  of  the  life-tenant.  One  of  the  tests  laid  down  in  the 
books  by  which  we  may  ascertain  whether  a  remainder  is  vested 
or  contingent  is  to  inquire  whether  the  persons  claiming  such  re- 
mainder, being  sui  juris ^  could  by  uniting  with  the  owner  of  the 
particular  estate  convey  a  fee  sinple  title.  If  he  could,  such  re- 
mainder must  be  regarded  as  vested;  otherwise  it  is  contingent. 
For  if  the  owner  of  the  right  1o  the  immediate  possession  unites 
with  the  owner  of  the  right  to  the  future  possession  when  such 
immediate  possession  shall  become  vacant  in  conveying  the 
property,  then  the  whole  estate,  present  as  well  as  future,  is 
well  conveyed.  But  if  the  owner  of  the  right  to  the  future  pos- 
session is  not  ascertained,  or  if  his  right  depends  upon  the  hap- 
pening of  a  future  event,  such  right  to  the  future  possession 
could  not  be  well  conveyed,  and  the  grantee  would  necessarily 
take  an  imperfect  title. 

Subjecting  this  case  to  the  test,  it  must  be  apparent  that  the 
remainders  are  not  vested,  for  neither  class  of  remainder-men 
could  by  uniting  with  the  life-tenant  convey  a  good  title.  The 
issue  of  the  son  could  not,  because  if  the  life-tenant  should  sur- 
vive such  issue,  their  conveyance  would  not  carry  the  title  in 


CONTINGENT    USE,  DKFKATEl)    HY    LIVERY    OF    SEISIN.         371 

remainder;  and  the  residuary  legatees  and  devisees  could  not, 
because  if  the  life-tcnaiit  should  die,  leaving  any  issue  their  con- 
veyance would  not  carry  the  title  in  remainder,  and,  therefore, 
the  property  would  hot  be  well  conveyed.  As  Harper,  Ch.,8ay8 
in  Dehon  v.  Redlern  (Dud.  Eq.  118),  in  speaking  of  remainders 
like  those  under  consideration  :  "  They  were  to  the  children  who 
should  be  living  at  the  death  of  the  daughters  respectively,  or 
to  the  children  of  those  who  had  died  leaving  children.  Until 
the  death  of  the  daughters  it  must  remain  perfectly  uncertain 
who  will  be  the  persons  to  take,  and  this  is  the  definition  of  one 
species  of  contingent  remainders."  So  here  the  remainder  is  to 
the  issue  of  John  Lewis  Fal)er,  *'  living  at  the  time  of  his  death;" 
and  in  default  of  such  issue,  to  the  residuary  legatees  and 
devisees.  Until  the  death  of  John  Lewis  Faber  it  must  remain 
perfectly  uncertain  who  will  be  the  person  to  take,  and  hence 
the  remainders  are  contingent.  If  so,  then  it  necessarily  follows, 
upon  the  authority  of  Redfern  v.  Middleton  (Rice,  459),  in  which 
the  court  of  errors  ado[)ted  the  reasoning  of  Chancellor  Harper 
in  his  circuit  decree  in  Dehon  v.  Redfern  (Dud.  115)  that  the 
contingent  remainders  to  the  issue  of  John  Lewis  Faber,  and  in 
default  of  such  issue  to  the  residuary  legatees  and  devisees,  were 
barred  by  the  deed  of  feoffment  and  livery  of  seisin  to  F(»lker, 
and  by  his  conveyance  to  John  Lewis  Faber  and  the  release  of 
Mrs.  Ann  M^trgaret  Faber  of  all  her  interest,  the  absolute  title 
was  perfected  in  the  said  John  Lewis  Faber. 

But,  second,  it  is  agreed  by  the  appellant  that,  even  it  the 
remainders  be  construed  to  be  contingent  and  not  vested,  yet  the 
deed  of  feoffment  and  livery  of  seisin  could  not  bar  such 
remainders,  because  the  legal  estate  was  vested  in  the  trustees. 
This  proposition  might  be  admitted  if  it  were  true  that  the  legal 
estate  was  in  the  trustees.  It  becomes  necessary,  therefore,  to 
consider  that  question.  The  rule,  undoubtedly,  is  that  where 
there  is  a  conveyance  to  one  for  the  use  of  another,  and  the 
trustee  is  charged  with  no  duty  which  renders  it  necessary  that 
the  legal  estate  should  remain  in  him  to  enable  him  properly  to 
perform  such  duty,  the  statute  of  uses  executes  the  use  and 
carries  the  legal  title  to  the  cesti/i  que  use.  Ramsey  v.  Marsh, 
2  McC  252;  Laurens  v.  Jenny,  1  S|)ear,  356;  McNish  v.  Guerard, 
4  Strobh.  Eq.  66.  By  the  terms  of  the  will  under  consid- 
eration it  does  not  appear  that  the  trustees  are  charged  with 
any  duty  whatsoever.  The  language  is  "  in  trust  to  and  for  the 
use,  benefit  and  behoof  of  my  son,  John  Lewis  Faber,  for  and 
during  the  term  of  his  natural  life  and  no  longer;  and  from  and 
immediately  after  the  death  of  my  said  son,  then  and  in  trust  to 
and  for  the  lawful  issue  of  my  said  son  living  at  the  time  of  his 


372  USES  AND  TRUSTS. 

death  ;  *  *  *  and  should  my  said  son  die  without  leaving 
hiwfuUy-begotten  issue,  living  at  the  time  of  his  death,  then  and 
in  that  case  I  give,  devise  and  bequeath  all  and  singular  the  lots 
of  land,  &c.  *  *  *  unto  my  residuary  devisees  and  legatees, 
their  heirs  and  assigns  forever,  to  be  equally  divided  between 
them  share  and  share  alike."  There  is  no  provision  that  the 
trustees  shall  receive  the  rents  and  incomes  of  the  property  and 
pay  them  over  to  the  son  or  to  his  issue  after  his  death,  nor  is 
there  any  provision  that  the  trustees  shall  have  the  estate  for  the 
sole  and  separate  use  of  any  of  the  issue  who  might  happen  to 
be  married  women ;  in  fact  no  duty  whatsoever  is  imposed  upon 
the  trustees. 

*  *  *  The  other  exception  taken  to  the  judgment  below, 
that,  until  administration  upon  the  estate  of  Mrs.  Faber,  the 
plaintiff  could  not  convey  the  premises,  was  not  insisted  upon  in 
the  agreement  here,  and  therefore,  we  infer  that  it  was  aban- 
doned. But  if  we  are  wrong  in  this  inference,  we  may  say  that 
we  do  not  think  this  exception  would  avail  the  appellant.  Mrs. 
Faber  died  in  1858  and  up  to  this  time  no  claims  have  been  set 
up  against  her  estate,  so  far  as  we  are  informed  by  the  record. 
But  certainly  if  appellant  had  accepted  the  title  when  rendered, 
and  debts  aganist  the  estate  of  Mrs.  Faber  should  afterwards 
have  been  set  up,  he  would  have  been  protected  in  his  title  by 
the  statute  3  and  4  W.  &  M.,  Chap.  XIV.  2  Stat.  536.  This, 
therefore,  constituted  no  valid  objection  to  the  title. 

The  judgment  of  the  circuit  court  is  affirmed.  Haskell,  A.  J., 
concurred. 

WiLLARD,  C.  J.  I  regret  that  we  are  compelled  to  give  effi- 
cacy to  an  act  of  wrong  on  the  part  of  the  life  tenant  in  destroy- 
ing the  remainders,  and  to  that  extent  defeating  the  intention  of 
the  testator.  This  effect,  originally  dependent  upon  purely  tech- 
nical grounds,  has  become  embodied  in  the  laws  of  our  State,  and 
we  have  no  power  to  deny  its  force.  I  am  satisfied  that  at  the 
time  of  the  alienation  the  remainders  were  contingent,  issue  not 
having  l)een  born.  As  it  regards  the  question  whether  the  limit- 
ation to  issue  living  at  the  death  of  the  first  taker  gave  a  re- 
mainder that  could  not  vest  upon  the  birth  of  issue,  I  do  not  deem 
it  necessary  at  the  present  time  to  pass  upon  it.  Such  a  view  is 
not  necessarily  precluded  by  Gregg  v.  Seabrook  (Seabrookv. 
Gregg,  2  S.  C.)  but  still  I  think  that  counsel  should  be  heard  on 
that  case  before  that  conclusion  is  reached. 

Since  this  decision  was  rendered,  in  1877,  the  legislature  of 
South  Carolina  passed  an  act,  abolishing  the  tortious  operation 
of  feoflfments,  so  that  Faber  v.  Police  may  be  referred  to  as  the 


WHEN    A    LEGAL    ESTATE    OR    ONLY    AN    IMPLIED    TRUST.         373 

last  case  on  record  in  the  English-speaking  world,  in  which  a 
future  contingent  estate  has  been  defeated  by  the  life  tenant's 
feoffment  in  fee.  This  case  is  also  noteworthy  in  that,  while 
neither  the  judges  nor  counsel  nor  referee  referred  to  these 
future  contingent  limitations  as  anything  but  common  hiw 
remainders,  they  are  in  fact  contingent  uses,  taking  effect  as 
remainders,  and  therefore  defeated  by  this  tortious  feoffment  of 
the  tenant  for  life. 


When  a,  Bargain  and  Sale  or  Contract  of  Sale  Raises  a  Use 
Which  is  Executed  by  the  Statute  of  Uses  Into  a  Legal 
Estate  or  Only  an  Implied  Trust  Which  Requires  a 
Formal  Deed  of  Conveyance,  in  Order  to  Transfer  the 
Legal  Title  to  Vendee. 

Hanks  v.  Folsorn,  11  Lea,  655. 

Cooper,  J,,  delivered  the  opinion  of  the  court. 

Bill  filed  February  19,  1880,  by  the  children  and  sons-in-law 
of  J.  A.  Cassidy,  who  is  still  living,  and  Martha  A.  M.  Cassidy, 
his  late  wife,  to  recover  the  possession  of  certain  land.  The 
chancellor,  upon  final  hearing,  declared  the  complainants  entitled 
to  the  land  upon  the  death  of  their  father.  The  referees  have 
reported  in  favor  of  reversing  the  chancellor's  decree,  and  dis- 
missing the  hill  with  costs.  Both  sides  have  filed  exceptions  to 
the  report,  so  as  to  open  the  whole  case. 

J.  A.  and  Martha  A.  M.  Cassidy  intermarried  in  1858,  and 
had  five  children,  fonr  of  whom  are  com[)lainants,  and  one  of 
them  a  defendant  to  the  bill.  They  lived  in  Grainger,  now  Ham- 
blen County.  He  left  his  wife  and  family  in  1865,  and  went  to 
Ohio.  He  wrote  two  or  three  letters  to  his  wife  shortly  after  his 
departure,  and  then  ceased  to  write  altogether.  The  wife  there- 
upon addressed  a  letter  to  the  firm  by  whom  she  understood  from 
him  he  had  been  employed,  and  in  due  course  of  mail  received  a 
reply,  purporting  to  be  from  the  firm,  that  a  dead  body  had  been 
found  in  the  Ohio  river,  which  was  supposed  to  be  that  of  her 
husband  from  certain  papers  taken  from  a  pocket  of  the  cloth- 
ing. These  papers,  consisting  of  her  husband's  discharge  from 
the  army,  seem  to  have  been  sent  to  her.  This  was  early  in  1 866, 
and  from  that  time  she,  and  her  family  and  neighbors,  believed 
that  he  was  dead.  She  was  thereafter  treated  as  a  widow,  and 
he  was  not  again  heard  of  in  the  neighborhood  until  about  the 
middle  of  the  year  1876.  She  and  her  children  by  Cassidy  were 
left  in  abject  poverty.  At  her  instance,  her  only  son  by  a 
former  marriage,  came  from  a  distant  county  and  took  charge  of 
her  and  her  children. 


374  USES    AND    TRUSTS. 

About  the  time  the  Itiiul  in  controversy,  which  Martha  A.  M. 
Cassidy  had  inherited  from  her  father  in  1858,  was  set  apart  to 
her.  It  consisted  of  twenty-five  acres  of  uninclosed  and  unim- 
proved hind.  In  order  to  secure  a  home  for  her  family,  siie 
excluiugod  this  land  for  another  small  tract  in  the  neighborhood 
which  was  improved.  In  pursuance  of  the  agreement  of  ex- 
change, on  July  16,  1869,  she  undertook  to  convey  the  land  in 
controversy  to  the  defendant,  F.  W.  Taylor,  and  Taylor  caused 
to  be  conveyed  to  her  the  other  tract  of  land.  She  took  posses- 
sion of  the  latter  tract,  and  lived  on  it  with  her  children  until 
her  death  on  November  7,  1870.  In  the  year  1872,  her  son  by 
her  first  husband  filed  a  petition  in  court  against  the  other  chil- 
dren for  a  sale  of  the  land  for  partition,  and  such  proceedings 
were  had  that  in  January,  1873,  the  laud  was  sold,  and  the  title 
vested  in  the  son  by  the  first  marriage,  who  afterwards  sold  the 
land  to  the  defendant  Crouch,  and  at  his  request  conveyed  it  to 
Crouch's  wife. 

Upon  the  conveyance  to  him  of  the  land  in  controversy,  F. 
W.  Taylor  placed  his  son-in-law,  the  defendant,  G.  W.  Folsom, 
in  possession,  who  fully  inclosed  it  by  the  first  of  December  of 
that  year,  and  remaine(l  in  possession  until  November  29,  1876, 
when  he  sold  to  the  defendant,  McFarland,  executing  to  him  a 
bond  for  title.  McFarland  at  once  entered  into  possession,  and 
has  continued  in  possession  ever  since. 

On  January  29,  1880,  J.  A.  Cassiday  filed  his  bill  against 
Crouch  and  wife  to  recover  possession  as  tenant  by  the  curtesy, 
of  the  land  received  by  his  late  wife  in  exchange  for  tlie  land  in 
controversy.  On  January  20,  1880,  Cassidy  in  writing  surren- 
dered his  estate  by  curtesy  in  the  land  in  controversy  to  his  chil- 
dren, an(]  on  February  19,  1880,  the  present  bill  was  filed. 

The  defendants  having  relied  upon  the  defense  of  the  statute 
of  limitations  of  seven  years,  the  complainants  contend  that  the 
instrument  in  writing  by  which  Martha  A.  M.  Cassidy  under- 
took to  convey  the  land  in  controversy  to  F.  M.  Taylor,  did 
not  accomplish  that  object  for  want  of  necessary  words  of 
conveyance,  and  is  in  any  event  .a  mere  nullity,  because 
there  was  no  privy  examination  of  the  grantor  to  its  execu- 
tion. 

The  material  parts  of  the  instrument  are  as  follows:  "  This 
indenture,  made  and  entered  into  the  16th  day  of  July,  1869, 
between  Martha  Ann  Matilda  Cassidy  of  the  one  part,  and  Frank- 
lin W.  Taylor  of  the  second  part,  witnesseth,  that  I,  the  said 
Martha  Ann  Matilda  Cassidy,  have  this  day,  for  and  in  consid- 
eration of  the  sum  of  $700,  bargained  and  sold  to  the  said 
Franklin  W.  Taylor,  a  certain  piece  or  parcel  of  land  (describing 


WHEN   A    LEGAL   ESTATE    OR   ONLY   AN    IMPLIED   TRUST.  375 

it),  to  have  and  to  hold  the  said  tract  or  parcel  of  land  to  the 
said  F.  M.  Taylor  as  an  inheritance  in  fee  simple  forever. 

The  objection  to  this  instrument  is  that  it  contains  no  words 
of  conveyance,  and  that  the  defect  is  not  helped  b}'  the  Jtahendum 
clause,  which,  it  is  said,  can  oidy  be  looked  to  in  order  to  define, 
qualify  or  control  the  estate  conveyed.  The  operative  words  in 
the  premises  of  this  intrument  are  "  bargained  and  sold." 
More  than  half  a  century  ago,  Chancellor  Kent,  in  lectures 
wliich  have  done  honor  to  our  country,  did  not  hesitate  to  say 
that  a  deed  would  be  perfectly  competent  to  convey  land  in  any 
part  of  the  United  States,  in  which  one  person  undertook,  for  a 
recited  consideration,  to  "  bargain  and  sell  "  to  another  a  lot  of 
land,  describing  it.  And  the  highest  court  of  at  least  one  of  our 
sister  States  seems  to  have  judicially  held  such  to  be  a  deed  good  : 
2  Dana  (Ky.),  23.  In  this  State,  for  over  thirty  years,  it  has 
been  provided  by  statute  that  every  grant  by  deed  of  real  estate 
shall  pass  all  of  the  estate  of  the  grantor  "  unless  the  intent  to 
pass  a  less  estate  or  interest  shall  appear  by  express  terms,  or 
be  necessarily  implied  in  the  terms  of  the  instrument."  Code, 
Sec.  2006.  And  the  legislature,  by  the  Code,  Sec.  2013,  has 
reduced  the  forms  of  conveyance  to  their  simplest  elements,  and 
disclosed  a  clear  intent  that  the  largest  meaning  shall  be  given 
to  words  in  grant,  unless  limited  by  the  instrument  itself.  Daly 
V.  Willis,  5  Lea,  104.  And  our  decisions  have  been,  in  effect, 
that  the  whole  instrument  will  be  looked  to,  without  nmch  refer- 
ence to  technical  rules,  to  ascertain  the  intent  of  the  parties. 
The  same  words  may  be  construed  as  an  agreement  to  convey,  or 
as  operating  an  actual  conveyance  according  to  the  intention  of 
the  parties  to  be  gathered  from  the  context.  Beecher  v.  Hicks, 
7  Lea,  211;  Carnes  v.  A[)person,  2  Sneed,  562;  Topp.  v.  White, 
12  Heis.  165,  173;  Alderson  v.  Clears,  7  Heis.  667;  Latterty 
V.  Whitesides,  1  Swan,  123.  It  is  impossible  to  read  the  instru- 
ment under  consideration  without  seeing  that  it  was  intended  as 
a  deed  of  conveyance  of  the  laud  in  fee,  and  the  word  "  sell  "  in 
the  present,  or  "  sold  "  in  the  past  tense,  equally  import  an  exe- 
cuted contract  unless  limited  by  the  context  or  character  of  the 
instrument.  We  are  clearly  of  opuiion  that  the  words  used  in 
the  instrument  under  consideration  were  sufficient,  in  view  of 
the  plain  intent  of  the  parties,  to  convey  the  land  to  the  grantee 
in  fee. 

This  court  has  uniformly  ruled  since  the  act  of  1819,  and  has 
repeated  the  ruling  at  this  term,  that  the  meaning  of  the 
statute  of  limitations  in  favor  of  the  tenant  in  possession 
does  not  depend  U|)on  the  validity  of  the  assurance  of  title 
under   which    he    claims.     If   it    be    in    form    an    assurance  of 


376  USES    AND   TRUSTS. 

title  purporting  to  convey  an  estate  in  fee,  although  void  both 
at  law  and  in  equity,  the  statute  will  perfect  the  title  within  the 
period  of  limitations.  Continuous  adverse  possession  is  the  im- 
portant point,  the  assurance  of  title  being  necessary  to  ascertain 
the  land,  and  to  determine  the  estate  acquired.  Hunter  v. 
O'Neal,  4  Baxt.  474;  Thurston  v.  University,  4  Lea,  513. 
The  ])()int  is  made  that  the  deed  of  a  married  woman  is  not 
rendered  effectual  by  signing  and  delivery,  but  only  by  her 
privy  examination.  And,  therefore,  says  the  learned  counsel, 
the  question  we  make  is  not  that  the  deed  was  void  and  inopera- 
tive merely,  but  that  it  was  no  deed  at  all.  The  distinction  is  a 
nice  one,  and  perhaps  we  may  be  reasonably  excused  if  we  fail 
to  see  it.  But  the  very  point  now  relied  on  was  made  over  a 
quarter  of  a  century  ago  in  a  case  involving  the  construction  of 
the  act  of  the  legislature  passed  to  cure  defective  probates 
after  a  registration  of  twenty  years,  and  found  one  judge  of  this 
court  who  thought  it  well  taken.  A  majority  of  the  court  held, 
however,  that  there  was  no  distinction  between  the  deed  o\'  Sifeme 
covert  and  any  other  deed  with  a  defective  probate,  although  it 
was  conceded  the  title  did  not  pass  for  the  want  of  a  proper 
privy  examination.  Matthewson  v.  Spencer,  3  Sneed,  513.  This 
decision  has  been  repeatedly  followed:  Murdock  v.  Leeth,  10 
Heis.  16(5;  Anderson  v.  Bewley,  11  Heis.  29;  Stephenson  v. 
Walker,  8  Baxt,  289.  For  a  much  stronger  reason  the  ruling 
should  be  applied  in  a  class  of  cases  strictly  analogous  where 
time  is  supplemented  by  continuous  adverse  possession  for  the 
required  period. 

The  disseisin  occasioned  by  the  possession  taken  under  the 
deed  of  Martha  A.  M.  Cassidy  was  of  the  joint  estate  of  Cassidy 
and  wife,  and  their  joint  right  of  action  was  barred  by  the  con- 
tinuous adverse  possession  of  Taylor  for  seven  years,  and  the 
title  thus  acquired  was  sold  to  McFarland.  Guin  v.  Anderson,  8 
Humph.  298.  And  the  heir  of  the  wife  has  only  three  years  after 
her  death,  or  at  any  rate  after  the  right  of  the  surviving  hus- 
band is  barred.  Id.  The  right  ai5d  title  of  the  husband  was 
not  only  barred,  but  extinguished  and  interposed  no  obstacle  to 
a  suit  by  his  children.  McClung  v.  Sneed,  3  Head,  219.  His 
subsequent  conveyance  or  surrender  to  his  children  passed 
nothino;  to  them.  And  their  right  of  action  as  heirs  of  their 
mother  was  also  barred  and  extinguished  by  a  failure  to  sue  in 
the  prescribed  time. 

It  is  probable  also  that  the  conclusion  of  the  referee  may  be 
sustained  upon  the  doctrine  of  estoppel,  as  assumed  by  them,  if 
not  upon  the  implied  fraud  of  the  married  woman  in  represent- 
ing herself  as  discovert^  at  any  rate,  upon  the  ground  that  the 


RESULTING  TRUST  AFTER  PERFORMING  EXPRESS  TRUST.        377 

complainants,  although  infants  and  feme  covert^  have  ratified 
the  act  of  the  mother  by  accepting  the  property  given  in  ex- 
change, and  not  offering  to  return  the  property  given  in  their 
bill.  Storiner  v.  Ditvvaller,  MS.  oi)inion  at  Knoxville,  Septem- 
ber terra,  1878.  It  would  be  manifestly  inequitable  to  give 
them  both  tracts  of  land,  and  it  is  not  easy  to  see  how  they  can 
do  equity  after  having  sold,  even  through  proceedings  in  court, 
the  tract  received  by  them.  It  is,  however,  unnecessary  to 
further  consider  this  point. 

The  chancellor's   decree  will  be    reversed,  and  the   bill  dis- 
missed with  costs. 


Resulting  Trust  to   Grantor  or   Testator's  Heirs,  After  Per- 
formance of  Express  Trust. 

Bufflngton  v.  MaXam,  152  Mass.  477;  25  N.  E,  975, 

Appeal  from  supreme  judicial  court,  Bristol  County;  Charles 
Allen,  Judge. 

Petition  by  Phebe  A,  I.  Buffington  for  an  accounting  by  Har- 
riet Maxuni  as  trustee  of  the  estate  of  Borden  C.  Tallman,  de- 
ceased. At  his  death  said  Tallman  left,  surviving  him,  three 
daughters,  —  the  petitioner,  the  respondent,  and  the  third 
daughter  Caroline  E.  Tallman.  By  his  will  he  disposed  of  his 
property  in  the  following  words:  "(1)  To  my  Harriet  I  give 
my  half  of  the  farm,  together  with  produce,  stock,  and  farming 
implements  thereon,  and  the  rest  and  residue  of  all  my  property, 
whether  real  or  personal,  of  whatever  name  or  nature,  for  the 
support  of  my  daughter,  Caroline  E.,  except  the  following  lega- 
cies. (2)  To  my  daughter  Phebe  Ann  I  give  five  dollars.  (3) 
To  ray  daughter  Caroline  E.  I  give  five  dollars."  Under  a  de- 
cree of  this  court  that  Harriet  took  the  residue  in  trust  for  the 
support  of  Caroline,  Harriet  filed  a  bond  as  such  trustee.  On 
the  death  of  Caroline,  Phebe  filed  this  petition  for  an  account- 
ing, and  from  the  decree  of  the  judge  of  probate  ordering  that 
an  account  be  filed,  the  respondent  appealed.  At  the  hearing  of 
her  appeal  the  decree  was  aflSrmed,  and  from  this  decision  re- 
spondent again  appeals. 

Knowlton,  J.  The  decision  of  this  case  depends  on  the  con- 
struction of  the  first  clause  of  the  will  of  Borden  C.  Tallman, 
which  is  as  follows  :  "  To  my  [daughter]  Harriet  I  give  ray  half 
of  the  farm,  together  with  produce,  stock,  and  farming  imple- 
ments thereon,  and  the  rest  and  residue  of  all  my  property, 
whether  real  or  personal,  of  whatever  name  or  nature,  for  the 
support  of  my  daughter  Caroline  E.,  except  the  following  leg- 
acies,"    It  has  alreadv  been  decided  that  under  this  clause  the 


378  USES    AND    TllUSTS. 

respondent,  Harriet  Maxam,  took  an  absolute  estate  in  one-half 
of  the  farm  together  witli  the  produce,  stock,  and  fanning  im- 
pletnents,  and  that  she  received  the  rest  and  resitkie  in  trnst  to 
use  it  for  the  suj)i)ort  of  Caroline  E.  Talhnan.  Buflington  v. 
Maxam,  140  Mass.  557  ;  5  N.  E.  Rep.  519.  Caroline  E.  Tallman 
having  de<^eased,  the  question  arises  whether  the  lemainder  is 
to  be  divided  between  the  two  daughters  of  the  testator  as  in- 
testate property,  or  whether  the  respondent  takes  the  whole  of 
it  under  the  will.  If  the  respondent  took  no  interest  in  it 
except  as  trustee,  the  petition  was  rightly  brought,  and  the 
decree  must  be  affirmed.  The  question  to  be  determined  is 
whether  the  respondent  took  the  pio[)erty  upon  a  trust  or  sub- 
ject to  a  trust.  If  upon  a  trust  she  took  no  beneficial  interest, 
and  when  the  purposes  of  the  trust  are  accomplished,  the 
remainder  goes,  under  a  resulting  trust,  as  property  undisposed 
of  by  the  will.  If  subject  to  a  trust,  the  beneficial  interest  was 
in  her,  subject  to  a  legal  duty  to  support  her  sister,  and,  that 
duty  having  been  performed,  she  holds  the  remainder  abso- 
lutely. If  we  take  the  language  of  the  will  literally,  the 
property  was  given  to  the  respondent  for  the  support  of  the  tes- 
tator's daughter  Caroline  E.,  and  for  no  other  purpose.  Under 
a  former  decree  of  the  court,  the  respondent  has  filed  a  bond  as 
trustee.  The  testator's  relations  with  all  his  daughters  were 
friendly,  and  no  reason  appears  why  he  should  wish  to  disinherit 
the  petitioner.  He  gave  a  substantial  gift  of  real  and  personal 
property  to  the  rci^pondent,  with  legacies  of  only  five  dollars 
each  to  the  petitioner  and  to  Caroline.  The  rest  of  his  estate 
consisted  of  $12,000  in  personal  property,  and  this  he  gave  to 
Harriet  for  the  support  of  Caroline.  It  seems  fair  to  conclude 
that  he  did  not  intend  that  Harriet  should  hold  this  otherwise 
than  under  the  trust  declared  in  the  will.  Loring  v.  Loring,  100 
Mass.  340.  As  was  said  in  the  former  decision,  the  will  is  ob- 
scure and  inartificially  drawn,  and,  in  interpreting  it,  we  must 
consider  the  attending  circumstances.  We  can  hardly  believe, 
under  the  circumstances  of  this  case,  and  in  the  absence  of 
language  clearly  expressing  it,  that  the  testator  intended  to  give 
Harriet  the  remainder  of  this  large  legacy  on  the  death  of  Caro- 
line, in  addition  to  other  property  given  her,  and  to  leave  Phebe 
with  only  five  dollars.  We  are  of  opinion  that  the  respondent 
took  no  interest  in  this  legacy  under  the  will  except  as  trustee, 
and  that  the  remainder,  upon  the  settlemenc  of  the  trustee's  ac- 
count, must  go,  under  a  resulting  trust,  to  the  testator's  personal 
representatives,  who  are  his  two  daughters,  the  petitioner  and 
the  respondent.     Decree  affirmed.  ' 


RESULTING   TRUST   TO    PARTY   PAYING  CONSIDERATION.         379 

Resulting  Trust  to  Party  Paying  the  Consideration. 

Burdett  v.  May,  100  Mo.  13;   12  S.  W.  1066. 

Error  to  circuit  court,  Livingston  County;  J.  M.  Davis, 
Judge. 

Action  by  Sarah  Burdette  and  others  against  James  May  and 
others  to  establish  a  resulting  trust.  Plaintiffs  allege  that 
defendant  James  May  entered  the  land  in  his  own  name,  when 
it  shoidd  have  been  entered  in  the  name  of  his  mother,  she  hav- 
ing furnished  the  money  to  buy  the  land.  Kev.  St.  Mo.,  §  3219, 
prescribes  that  actions  for  the  recovery  of  real  estate  must  be 
brought  within  10  years  from  the  time  the  cause  of  action  ac- 
crued, and  section  3222  prescribes  that  if  the  person  entitled  to 
sue  be  under  disability  the  action  may  be  brought  within  three 
years  after  the  disability  is  removed,  provided  no  action  shall 
be  brought  after  24  years  from  the  time  the  right  of  action 
accrued. 

Sherwood,  J.  1.  This  case  may  be  ruled  on  two  points, 
either  of  which  are  decisive:  (1)  The  insuflSciency  of  the  testi- 
mony to  establish  a  resulting  trust;  and,  (2)  the  statute  of 
limitations.  The  rule  which  prevails  in  this  State,  the  general 
rule  elsewhere  upon  the  subject  of  resulting  trusts,  requires  that 
in  order  to  prove  such  a  trust  it  must  be  established  by  testi- 
mony so  clear,  strong,  and  unequivocal  as  to  banish  every 
reasonable  doubt  from  the  mind  of  the  chancellor  respecting  the 
existence  of  such  trust.  This  is  the  substance  and  effect  of  the 
language  employed  by  the  authorities  and  by  this  court  in 
numerous  instances.  Johnson  v.  Quarles,  46  Mo.  425  ;  Forrester 
V.  Scoville,  51  Mo.  2(i8;  Ringo  v.  Richardson,  53  Mo.  385; 
Kennedv  v.  Kennedy,  57  Mo.  73  ;  Gillespie  v.  Stone,  70  Mo. 
507;  Philpot  v.  Penn,  91  Mo.  38  ;  3  S.  W.  Rep.  386;  Berry  v. 
Hartzell,  91  Mo.  132  ;  3  S.  W.  Rep.  582.  The  testimony  in  this 
cause,  it  will  be  ol)served,  is  made  up,  for  the  most  part, 
of  the  verbal  admissions  of  the  party  against  whom  the  resulting 
trust  is  sought  to  be  established.  Touching  the  subject  of  such 
admissions,  and  the  weight  to  be  given  them,  Greenleaf  states: 
"The  evidence,  consisting,  as  it  does,  in  the  mere  repetition  of 
oral  statements,  is  subject  to  much  imperfection  and  mistake; 
the  party  himself  either  being  misinformed  or  not  having  clearly 
expressed  his  own  meaning,  or  the  witness  having  misunderstood 
him.  It  frequently  happens,  also,  that  the  witness,  by  uninten- 
tionally altering  a  few  of  the  expressions  really  used,  gives  an 
effect  to  the  statement  completely  at  variance  with  what  the 
party  actually  did  say."     1  Greenl.  Ev.,  §§  45,  97,  200.     And 


380  USES    AND   TRUSTS. 

those  admissions  were  made  when?  Certainly,  prior  to  August 
15,  1848,  the  date  of  the  patent  to  James  May,  since  which  time 
he  has  occupied  the  premises,  paid  taxes,  made  improvements, 
bought  and  sold,  and  managed  the  phice  as  if  it  were  his  own. 
The  fact  that  his  father  and  fajnily  lived  upon  the  place  for  a 
number  of  years  along  with  James  May  argues  nothiug  against 
his  title,  e8i)ecially  when  considered  in  connection  with  the  rela- 
tionship between  the  parties,  and  other  facts  in  evidence.  Will- 
iam May,  a  brother,  worked  for  James  May  on  the  farm,  and  for 
the  years  1857  to  1859,  was  paid  by  James  $400  for  his  labor,  and 
went  away,  and  remained  away  from  the  place  ever  since,  with 
the  exception  of  a  visit  to  the  place  in  1865,  when  he  took 
away,  on  a  visit  to  Gallaway  County,  his  mother,  whom  he 
found  living  at  James'  house.  None  of  the  children  claimed 
the  place,  or  set  up  any  opposition  to  the  title  of  James; 
and  it  is  truly  remarkable  that  William  May  should  accept 
wages  from  his  brother,  if  he  knew  he  was  as  much  entitled 
to  the  place  as  his  brother.  Indeed,  he  as  well  as  Graham 
and  his  wife,  have  refused  to  join  in  the  present  suit,  and 
therefore  were  made  parties  defendant.  It  is  so  natural  that 
parties  having  a  right  to  property  should  assert  it,  should  con- 
tinue to  live  upon  it,  after  once  having  lived  there,  that  the  fact 
that  they  have  done  neither  nmst  weigh  heavily  against  the 
probability  of  the  justness  of  their  claim,  when  asserted  after 
so  many  years  of  silence,  non-claim,  and  abandonment.  None 
of  the  present  claimants,  so  far  as  appears,  live  on  the  property 
in  dispute,  or  did  so  at  the  time  of  the  mother's  death,  which 
occurred  in  1865,  her  husband  having  died  in  1863.  And,  from 
testimony  introduced  on  behalf  of  the  real  defendant,  James 
May,  it  appears  that  his  mother  made,  in  1881,  to  one  of  her 
neighbors  and  intimate  friends,  the  statement  that  the  place  was 
given  to  him  as  a  recompense  for  staying  with  his  parents,  and 
caring  for  them  in  their  old  age.  And  the  testimony  of  William 
May  goes  to  strengthen  this  view,  because  he  says  that  on  a 
difficulty  springing  up  between  himself  and  brother  James,  in 
1857,  about  workiug,  that  his  mother  told  James  that  the  place 
was  hers  during  her  life,  etc.  Now,  if  these  statements  by  the 
mother  were  made,  they  beiug  statements  of  the  equitable  owner 
then  in  possession,  according  to  plaintiff's  theory,  they  were 
competent  testimony;  and,  admitting  that  defendant  James 
May  did  make  the  verbal  admissions  heretofore  ascribed  to 
him,  they  are  not  inconsistent  with  the  statements  of  his 
mother.  Besides,  it  must  be  borne  in  mind  that  the  present 
proceedings  were  instituted  over  eighteen  years  after  the  death 
of  the  mother,  who  knew  all  about  the  transaction.     Courts  of 


TRUST   TO    PREVENT    ATTACHMENT    OF    CLAIMS.  381 

equity  view  with  disfavor  suits  lh;it  are  brought  long  after  the 
transactions  litigated  have  occurred,  and  long  after  death  has 
sealed  the  lips  of  those  familiar  with  the  occurrences  so  remote 
in  point  of  time.  State  v.  West,  68  Mo.  229;  Lenox  v.  Harri- 
son, 88  Mo.  491,  and  cases  cited.  For  these  reasons  it  must  be 
held  that  tlie  chiim  of  phiintiffs  has  not  been  established  in  the 
manner  demanded  by  the  authorities  heretofore  quoted. 

2.  In  addition  thereto,  the  claim  of  the  phiinliff  is  barred  by 
the  statute  of  limitations.  That  statute,  although  it  will  not,  as 
a  rule,  run  against  technical  or  express  trusts,  yet  it  will  do  so 
from  the  time  when  the  facts  constituting  a  resulting  trust  are 
brought  home  to  the  cestui  que  trust.  Buren  v.  Buren,  79  Mo. 
538,  and  cases  cited.  In  the  case  at  bar,  as  the  cause  of  action 
accrued  in  1848,  Mrs.  May,  the  mother,  only  became  discovert 
in  1863.  Her  disability  prior  to  the  latter  date  prevented  the 
statute  from  running  against  her,  inasmuch  as  the  time  specified 
in  the  proviso  of  section  3222  had  not  expired.  That  is  to  say, 
the  twenty-four  years  mentioned  in  the  proviso  had  not  elapsed 
between  the  time  the  right  of  title  of  iMrs.  May  first  descended 
or  accrued  to  her  and  the  period  when  she  became  discovert. 
Ang.  Lim.  (6th  Ed.),  §  477,  and  notes;  Hunt  v.  Wall,  75  P. 
St.  413;  Warn  v.  Brown,  102  Pa.  St.  347;  Bradlev  v.  Burgerss, 
10  S.  W.  Rep.  5 ;  Medlock  v.  Suter,  80  Ky.  101  ;  Mantle  v.  Beal, 
82  Ky.  122;  Valle  v.  Obenhause,  ii'2  Mo.  81.  Consequently, 
whatever  right  or  title  she  had  originally  remained  at  her  hus- 
band's death.  But,  as  the  statute  begun  to  run  in  1863  against 
her,  no  subsequent  disability  or  existirl§  disability  of  those  who 
afterwards  became  her  heirs  conld  stop  its  course.  Tha  saving 
clause  only  extends  to  the  person  on  whom  the  right  of  action 
first  descends,  or  to  whom  the  cause  of  action  first  accrues.  Ang. 
Lim.,  §§  477,  478,  e^sp^. ;  Landes  z;.  Perkins,  12  Mo.  238;  Cun- 
ningham V.  Snow,  82  Mo.  587;  Williams r.  Dongan,  20  Mo.  186; 
Swearingen  v.  Robertson,  39  Wis.  462  ;  Bozeman  v.  Browning, 
31  Ark.  364;  Wood  Lim,,  §  251  et  seq..,  and  cases.  The  heirs, 
then,  of  Mrs.  May  must  be  regarded  as  barred  in  the  same  length 
of  time  from  the  date  when  she  became  discovert  as  she  would, 
had  she  lived,  to  wit,  three  years.  On  either  of  the  grounds 
aforesaid  the  judgment  should  be  aflirmed. 


Trust  Established  for  the  Purpose  of  Preventing  the  Attach- 
ments of  Claims  of  the  Creditors  of  Cestui  que  Trust. 

Wemyss  v.  White,  159  Mass.  484;  34  N.  E.  718. 

Report  from  supreme  judicial  court,  Sufiblk  County. 

Bill  in    equity    by  James  Wemyss,  Jr.,  against    Charles    G, 


382  U8KS    AND    TRUSTS. 

White  and  others,  trustees  under  the  will  of  B.  F.  White, 
deceased,  to  compel  defendants  to  i»j)ply  the  income  of  the  estate 
to  the  payaieut  of  a  certain  order  and  mortgage  executed  to 
plaintiff  by  H.  G.  White,  the  beneficiary  under  the  will.  Case 
reserved  and  reported  to  the  full  bench.      Bill  dismissed. 

Lathhop,  J.  It  was  held,  after  much  consideration  by  thi< 
court,  in  Bank  v.  Adams,  133  Mass.  107,  that  a  person  having 
the  right  to  dispose  of  properly  may  settle  it  in  trust  in  favor  of 
another,  with  the  provision  that  the  income  shall  not  be  alien- 
ated by  the  beneficiary  by  anticipation,  or  be  sul>ject  to  bo  taken 
by  his  creditors  in  advance  of  its  payment  to  him,  although 
there  is  no  cesser  or  limitation  of  the  estate  in  such  an  event. 
This  case  distinctly  repudiated  the  doctrine  of  the  English 
courts  of  equity,  which  is  "  that  when  the  income  of  a 
trust  estate  is  given  to  any  person  (other  than  a  married 
woman)  for  life,  the  equital)le  estate  for  life  is  alienable  by 
and  liable  in  equity  to  the  debts  of,  the  cestui  que  trust; 
and  that  this  quality  is  so  inseparable  from  the  estate 
that  no  provision,  however  express,  which  does  not  operate 
as  a  cesser  or  limitation  of  the  estate  itself,  can  protect  it 
from  his  debts."  Id.  127,  per  Morton,  C.  J.  As  the  English 
doctrine  does  not  obtain  in  this  commonwealth,  we  have  no 
occasion  to  consider  the  numerous  cases  cited  from  the  English 
reports  in  support  of  the  plaintiff's  contention.  The  effect 
of  the  decision  in  Bank  v.  Adams  is  to  i)ut  an  equitable  cestui 
que  trust  upon  the  same  footing  as  a  married  women  under 
the  English  decisions.  *The  question  in  every  case  is  whether 
an  equitable  cestui  que  trust  takes  an  absolute,  unqualified  in- 
terest, which  he  can  assign,  and  which  can  be  reached  by  his 
creditors,  or  whether  he  takes  merely  a  qualified  interest,  over 
which  he  has  no  power  until  the  property,  principal,  or  income 
comes  into  his  possession.  The  question  is  determined  by 
ascertaining  the  intention  of  the  creator  of  the  trust,  it  being 
held  in  Bank  v.  Adams  that  the  intentions  of  the  creator  of  the 
trust  "  ought  to  be  carried  out,  unless  they  are  against  public 
policy,"  and  tiiat  the  power  of  alienating  in  advance  is  not  a 
necessary  attribute  or  incident  of  a  qualified  estate  or  interest, 
so  that  the  restraintof  such  alienation  would  introduce  repugnant 
or  inconsistent  elements.  Id.  173.  In  Bank  v.  Adams  the  intention 
was  expressed  in  clear  and  unequivocal  woids.  The  gift  was  of 
a  certain  sum  of  money  to  executors,  in  trust,  to  invest  and  pay 
the  net  income  thereof  to  a  brother  of  the  testator,  "  free  from 
the  interference  or  control  of  his  creditors;"  the  testator  de- 
claring his  intention  to  bo  "  that  the  use  of  said  income  shall  not 
be  anticipated  by  assignment."      See  also,  Claflin  v.  Claflin,  149 


TRUST  TO  PREVENT  ATTACHMENT  OF  CLAIM8.       383 

Mass.  19  ;  20  N.  E.  Rep.  454;  Billings  v.  Marsh,  153  Mass.  311 ; 
26  N.  E.  Rep.  1000.  "  Such  provision  need  not  be  in  express 
terms,  l>ut  it  is  sufficient  if  the  intention  is  fairly  to  be  gathered 
from  the  instrument  when  construed  in  the  liirht  of  the  circum- 
stances." Baker  v.  Brown,  146  Mass.  368,  371  ;  15  N.  E.  Rep. 
783;  Slattery  v.  Watson,  151  Mass.  265;  23  N.  E.  Rep.  843. 
The  CMse  at  bar  reseml)les  very  closely  that  of  Hall  v.  Williams, 
120  Mass.  344.  There  the  residue  of  the  property  was  devised 
to  trustees  to  pay  the  balance  of  the  income,  after  paying  cer- 
tain annuities,  in  equal  parts  to  the  seven  children  of  the  testator. 
Then  followed  a  provision  that,  if  either  of  the  recipients  should 
be  "  wanting  in  thrift  or  care,  or  a  sound  discretion  in  the  use 
of  money, "  the  trustees  were  "charged  with  paying  and  disburs- 
ing the  same  in  such  way  or  ways  as  shall  be  most  likely  to  make 
the  same  inure  and  be  beneficial"  to  such  recipient.  It  was 
held  that  this  vested  in  the  trustee  a  large  discretion  as  to  the 
time  and  manner  of  payment,  and  that  a  child  could  not  assign 
or  otherwise  dispose  of  his  share  of  the  income  in  advance  of  its 
payment  to  him.  In  the  case  at  bar  the  trustees  may  "at  any 
time,  in  the  exercise  of  their  discretion,  discontinue  the  payment 
of  the  income,  and  apply  the  same  in  such  way  as  they  deem 
best  for  the  beneficiary's  support  and  maintenance."  It  fol- 
lows that  the  beneficiary  did  not  have  an  absolute  right  to 
the  income  which  he  could  alienate  in  advance,  but  as  was 
said  in  Bank  v.  Adams,  "  only  the  right  to  receive  semi-annually 
the  income  of  the  fund,  which  upon  its  payment  to  him, 
and  not  before,  was  to  become  his  absolute  property."  St. 
1884,  c.  285,  does  not  change  the  rule  laid  down  in  Bank  v. 
Adams,  and  Billings  v.  Marsh,  ubi  supra;  and  we  find  nothing 
in  the  cases  of  Ricketson  v.  Merrill,  148  Mass.  76  ;  19  N.  E^ 
Rep.  11;  and  Wilson  v.  Fire-Alarm  Co.,  151  Mass.  515;  24 
N.  E.  Rep.  784,  cited  by  the  plaintiff,  which  intimates  the 
contrary. 

The  plaintiff  further  contends  that,  as  one  of  the  trustees  re- 
signed and  another  was  appointed  iii  his  place,  the  present 
trustees  cannot  exercise  any  discretion,  and  that  the  interest  of 
the  beneficiary  is  therefore  absolute.  By  the  ex|)res3  terms  of 
the  statute,  the  new  trustee  has  "  the  same  powers,  rights,  and 
duties  *  *  «  as  if  he  had  been  originally  appointed."  Pub. 
St.,c.  141,  §  6.  The  discretion  given  to  the  trustees  is  a  part  of 
the  tru-t,  to  be  exercised  by  them  as  long  as  the  trusts  shall 
continue.  It  cannot  be  considered  as  merely  a  personal  confi- 
dence in  the  persons  named  as  trustees.  Nugent  v.  Cloon,  117 
Mass.  219,  221;  Bradford  v.  Monks,  132  Mass.  405,  407; 
Schouler  Petitioner,  134  Mass.  426,  428.     Bill  dismissed. 


384  USES    AND    TKU8T8 

Note.  — St.  1884,  c.  285,  provides  as  follows:  *«  A  bill  in 
equity  may  bo  m!iintaine«.l  to  reucli  and  a|)|)ly  in  payment  of  a 
debt  any  property  of  a  debtor,  as  provided  by  clause  11,  section 
2,  of  chapter  151,  of  the  public  statutes,  notwithstanding  the 
fact  that  *  *  *  it  cannot  be  reached  and  applied  until  a 
future  time." 


What  Writing  Will  Satisfy  the  Requirements  of  the  Statute  of 
Frauds  in  the  Creation  of  Trusts. 

Hutchins  v.  Vau  Vechten,  140  N.  Y.  115;  35  N.  E.  446. 

Appeal  from  Supreme  Court,  (reneral  term,  first  department. 

Action  by  Elizabeth  E.  Hutchins,  as  executrix,  etc.,  against 
Abraham  Van  Vechten,  to  have  adjudged  that  defendant  held 
certain  real  property,  and  the  proceeds  arising  from  the  posses- 
sion thereof,  in  trust  for  the  joint  and  equal  benefit  of  himself 
and  plaintiff's  testator.  From  a  judgment  of  the  general  terra 
(20  N.  Y.  Supp.  751)  affirming  a  judgment  for  plaintiff,  defend- 
ant appeals.     Affirmed. 

O'Brien,  J.  The  judgment  in  favor  of  the  plainti|ff  in  the 
courts  below  adjudges  that  the  defendant,  under  a  deed  of  con- 
veyance to  him  t)y  Reuben  E.  Fenton  on  the  23d  day  of  Decem- 
ber, 1870,  of  certain  lands  in  the  county  of  Chautauqua,  then 
became  and  was,  and  ever  since  has  been,  seized  and  possessed 
thereof,  and  of  the  proceeds,  rents,  issues,  and  profits,  in  trust 
for  Waldo  Hutchins,  the  plaintiff's  testatoi-,  to  the  extent  of  an 
equal  undivided  one-half  part  thereof,  as  tenants  in  common.  It 
appearing  that  the  defendant,  before  the  commencement  of  the 
action,  had  sold  the  land,  the  title  to  which  he  held  in  his  own 
name,  an  accounting  concerning  the  proceeds  and  the  rents  and 
profits  was  directed  before  a  referee  designated  in  the  judgment. 
There  is  little,  if  any,  dispute  with  reference  to  the  facts,  and 
practically  the  only  question  presented  by  the  appeal  is  whether 
the  trust  impressed  by  force  of  the  judgment  upon  the  defend- 
ant's title  was  sufficiently  or  legally  established.  The  defendant 
relies  upon  the  provisions  of  the  statute  of  frauds  concerning 
trusts  of  this  character,  and  it  therefore  becomes  necessary  to 
determine  whether  the  plaintiff's  proofs  are  such  as  that  statute 
requires.  The  English  statute  on  this  subject  (29  Car.  II.,  c. 
3),  in  its  essential  features,  was  enacted  in  this  State  by  the  act 
of  February  26,  1787,  the  twelfth  section  of  which  provides  that 
"  all  declarations  or  creations  of  trusts  of  any  lands  shall  be  man- 
ifested and  proved  by  some  writing  signed  by  the  party  entitled 
by  law  to  declare  the  trust.  Thus  the  law  stood  for  about  forty 
years,  until  the  general  revision  of  the   statutes,  when  it  was 


WRITING STATUTE    OF    FRAUDS.  385 

changed,  and  made  to  read  as  follows:  "  No  estate  or  interest  in 
lands,  other  than  leases  for  a  term  not  to  exceed  one  year,  nor 
any  trust  or  power  over  or  concerning  lands,  or  in  any  manner 
relating  thereto,  shall  hereafter  be  created,  granted,  assigned, 
surrendered  or  declared,  unless  by  act  or  operation  of  law,  or 
by  a  deed  or  conveyance  in  writing  subscril)ed  by  the  party 
creating,  granting,  assigning,  surrendering  or  declaring  the 
same,  or  by  his  lawful  agent  thereunto  authorized  by  writing." 
2  Rev.  St.,  p.  13o,  §  6.  After  the  revision  a  trust  of  the 
character  claimed  by  the  plaintiff  in  this  case  could  not  be 
created  or  established  except  by  a  deed  or  convejauce  in  writ- 
ing. But  b}'  chapter  322  of  the  Laws  of  1860  the  legislature 
restored  the  law  to  its  original  condition  by  an  amendment  to 
the  seventh  section  substantially  providing  that  a  declaration  of 
trust  in  lands  might  be  proved  by  any  writing  subscribed  by  the 
declaring  the  same.  It  is  not  necessary  now  to  produce  a  deed 
or  a  formal  writing  intended  for  the  purpose  in  order  to  prove 
the  trust,  but  letters  or  informal  memoranda  signed  by  the 
party  and  even  admissions  in  a  pleading  in  another 
action  between  other  parties  if  signed  by  the  party, 
with  knowledge  of  its  contents,  will  satisfy  the  require- 
ments of  the  statute,  if  ihoy  contain  enough  to  show  the  nature, 
character,  and  extent  of  the  trust  interest.  Forster  v.  Hale,  3 
Ves.  696  ;  Fisher  v.  Fields,  10  Johns.  494;  Wriixht  v.  Douglass, 
7  N.  Y.  564;  Cook  v.  Barr,  44  N.  Y.  156;  Loring  v.  Palmer, 
118  U.  S.  321;  6  Sup.  Ct.  1073;  2  Story  Eq.  Jur.,  §  972; 
McArthur  v.  Gordon,  126  N.  Y.  597;  27  N.  E.  1033;  Urann  v. 
Coates,  109  Mass.  581. 

The  evidence  produced  in  behalf  of  the  plaintiff  was  sufficient, 
within  this  rule,  to  establish  au  interest  in  the  lands  by  her 
testator  at  the  time  of  his  death,  which  occurred  on  the  9th  day 
of  February,  1861.  The  conveyance  to  the  defendant  was 
shown  by  the  production  of  the  deed,  which  appeared  to  have  been 
recorded  in  the  proper  clerk's  office  December  3,  1875.  The 
plaintiff  produced  and  put  in  evidence  three  papers  found  in  an 
envelope  in  the  safe  of  Mr.  Hutchins  after  his  death,  and  which 
were  shown  to  have  been  in  his  possession  during  his  life:  (1) 
A  power  of  attorney  under  the  hand  and  seal  of  the  defendant  to 
John  H.  Piatt  who  was  at  the  time  of  its  execution  the  law  part- 
ner of  the  deceased,  bearing  the  date  »Tune  5,  1873,  acknowl- 
edged before  a  notary  public  in  the  city  of  New  York,  who  also 
became  a  subscribing  witness  thereto.  This  instrument  author- 
ized and  conferred  full  power  upon  Piatt  to  sell  the  land  for 
$8,000,  payment  to  be  made  in  the  manner  and  as  specified 
therein.     (2)  A  letter  in  the  defendant's  handwriting,  and  bear- 

25 


386  USES    AND    TRUSTS. 

ing  his  signature,  of  the  s.iino  date  us  the  power  of  attorney, 
a(](lressed  to  Phitt,  in  which,  after  referring  to  the  power  of 
attorney,  and  giving  instructions  permitting  hnn  id  take  certain 
notes  for  the  i)urcha.se  price  of  the  hmd,  the  defendant ' 
says:  "  Whatever  is  realized,  you  will  understand  that  it 
belongs  to  Waldo  Hntchins  and  myself,  jointly  and  equally  ; 
and  any  further  instructions  Mr.  Hntchins  may  give  you,  you 
may  comply  with."  (3)  Another  i)aper  unsigned,  but  wholly 
in  the  defendant's  handwriting,  describing  the  land  con- 
veyed to  him  by  Fenton.  It  begins  with  the  statement  that 
the  "  deed  from  Fenton  to  me  is  a  warranty  deed,  with  full 
covenants,"  and,  after  the  description,  ends  with  the  statement 
that  "  the  above  is  the  descri{)ti{)n  of  the  property  as  contained 
in  a  deed  to  me  ;  nothing  about  our  being  entitled  to  600  inches." 
The  plaintiff  also  produced  several  letters  written  by  the 
defendant  to  the  deceased  and  one  of  his  sons,  after  the  execu- 
tion of  the  power  of  attorney,  in  regard  to  taxes  on  the  land; 
also,  a  letter  written  by  the  defendant  to  E.  H.  Fenton,  then  a 
tenant  of  a  portion  of  the  land,  beating  date  February  14,  1887, 
in  which  the  defendant  states  that,  "although  the  title  of  the 
whole  [)roi)erty  is  in  me,  there  is  another  party  who  his  an 
interest.  I  expect  to  go  to  New  York  some  time  next  week, 
when  I  will  see  him,  and  let  you  know  what  it  is  decided  to  do  " 
It  is  not  necessary  to  the  plaintiff's  case  to  show  that  the 
trust  was  created  by,  or  originated  in,  a  writing.  The  st.itute 
enacts  a  rule  of  evidence,  and  is  satisfied  if  the  trust  is  mani- 
fested or  proved  by  a  writing,  hovvever  it  originated,  whether 
by  parol  arrangement  or  otherwise.  Crane  v.  Powell,  139 
N.  Y.  379;  34  N.  E.  '911.  The  defendant's  letter  to  Piatt 
refers  to  the  power  of  attorney,  and  that  refers  to  the  deed 
under  which  the  title  was  held  ;  giving  its  date,  and  the 
parties  to  it.  Both  are  signed  by  the  defendant  and  reading 
them  together,  as  they  should  be,  the  subject-matter  and  extent 
of  the  trust  is  sufficiently  defined  and  specified,  even  without 
the  unsigned  paper  and  other  letters.  This  proof  is  sufficient  to 
sustain  the  findings  of  the  learned  trial  judge,  to  the  effect  that 
the  defendant  took  and  held  the  title  to  the  land  in  his  own 
name,  but  in  trust  for  the  benefit  of  himself  and  the  plaintiff's 
testator,  in  equal  shares,  as  tenants  in  common.  It  was  not,  of 
course,  one  of  the  express  trusts  authorized  by  statute,  but  one 
arising  under  the  forty-seventh  section,  wdiich,  in  equity,  entitled 
the  deceased  to  a  beneficial  interest,  and  vested  in  him  an  estate 
of  the  same  quality  and  duration  as  such  interest.  EUvvood  v. 
Northrup,  106  N.  Y.  172-179  ;   12  N.  E.  590. 

We  agree    with  the  learned  counsel  for  the  defendant  that  a 


WRITING  STATIITK  OF  FRAUDS.  387 

tru>it  ciinnot  be  impressed  upon  what  appears  by  tlie  deed  alone 
to  be  an  absolute  tiilc  in  the  dd'endant,  without  clear  proof 
showing  a  beneHtial  interest  in  another,  as  well  as  its  nature, 
character,  and  extent,  and  that  a  failure  to  execute  or  deliver 
the  iiecessaiy  le<^al  evidence  to  qualify  the  title  is  fatal  to  such 
a  claim.  Wadd  v.  Hazelton,  137  N.  Y.  215;  33  N.  E.  143;  Van 
Cott  V.  Prentice,  104  N.  Y.  45  ;  10  N.  E.  257.  With  this  point 
clearly  in  view,  we  have  carefully  considered  the  very  able  ar- 
gument of  counsel  in  behalf  of  the  defendant,  mainly  devoted 
to  the  proposition  that  the  proof  in  this  case  does  not  come  up 
to  the  standard  which  the  law  demands  in  such  cases.  But 
we  think  that  the  written  evidence  produced  at  the  trial  is  not 
fairly  o[)en  to  any  construction  except  that  given  to  it  by  the 
learned  trial  judge,  and  is  consistent  only  with  the  theory  that 
the  deceased  had  in  fact  a  beneticial  interest  in  the  lands.  The 
defendant  stated  under  his  own  signature,  when  authorizing  his 
attorney  in  fact  to  sell  the  property,  that  he  was  entitled  to 
one-half  the  price,  and  directed  the  attorney  to  consult  with 
him  in  regard  to  the  execution  of  the  agency.  There  is  nothing 
in  the  case  to  warrant  the  belief  that  this  division  of  the  pro- 
ceeds of  the  sales,  when  made,  referred  to  compensation  as  a 
broker,  or  to  anything  else,  save  an  interest  in  the  property  to 
be  sold.  That  is  the  natural  conclusion  which  the  judicial  mind 
muht  reach  u[)on  leading  the  letters  and  papers  in  the  light  of 
all  circumstances.  The  trust,  it  is  true,  must  be  established 
wholly  by  a  writing  sufficient  within  the  statute;  but,  when  the 
writing  is  produced,  it  must  be  interpreted,  like  all  other  con- 
tracts and  written  instruments,  according  to  the  intention  of  the 
parties  ascertained  from  the  language  used,  and  all  the  sur- 
rounding circumstances.  The  fact  that  no  proof  was  given  by 
the  plaintitl'of  payment  by  the  testator  of  any  part  of  the  con- 
sideration is  not  material.  It  is  not  always  i)ossible,  after  the 
death  of  the  party  interested,  to  give  such  proof,  and  it  is  not 
essential  to  the  process  of  establishing  the  trust.  A  writing  with- 
out any  consideration  whatever  aft'ords  sufficient  proof  that  the 
title  conveyed  by  the  deed  is  for  the  benefit  of  another.  The  un- 
signed paper  and  the  letters  of  the  defendant  bearing  date  sul)se- 
queiit  to  the  power  of  attorney,  and  the  letter  which  accompanied 
it,  relating  to  the  taxes  on  the  land,  aud  the  nature  of  the  de- 
fendant's interest  therein,  wore  properly  admitted  in  evidence. 
U'hey  were  all  in  the  defendant's  handwriting,  presumptively 
sent  or  delivered  by  him  to  the  deceased;  and  they  explained, 
and  tended  to  confirm,  what  the  defendants  had  stated  in  the 
fir^t  letter  in  regard  to  the  interests  of  the  parties  in  the  lands. 
There  are  some  other  exceptions  in  the   record,  but  it  is  not 


388  USES    AM)    TRUSTS. 

necessary  to  refer  to  them  in  dctjiil.  It  is  sufficient  to  say  that 
wo  have  examined  them  all,  and  have  found  nothinjj;  in  them  that 
would  warrant  us  in  disturbing  the  judgment,  and  it  should 
theri'foie  bo  affirmed  with  costs.  All  concur,  except  PecUham, 
il.,  not  sitting. 


Appoiutment  of  Trustees  to  Fill  Vacancies,  Due  to  Resigna- 
tiou  or  Ilefusal  to  Serve. 

Brandon  v.  Carter,  111)  Mo.  572;  24  S.  W  1035. 

Opinion  by  Barclay,  J. 

This  is  an  action  of  ejectment.  In  the  petition  it  is 
alleged  that  plaintiff  was  duly  appointed  trustee  for  John  T. 
Jacobs  and  his  children  by  virtue  of  the  will  of  George 
R.  Jacobs,  deceased;  that  he  accepted  said  appointment  and 
qualilied  as  trustee;  that  as  such  he  was  on  the  7th  day  of 
March,  A.  D.  1888,  entitled  to  the  possession  of  a  certain  tract 
of  land,  which  defendant,  Mr.  Carter,  and  his  tenant,  Mr.  Kelly, 
then  occupied,  and  which  they  unlawfully  withhold,  etc.  The 
petition  contained  the  usual  allegations  in  ejectment,  and 
asked  judgment  for  possession,  rents,  profits,  etc.  The  answer 
admitted  the  possession  of  defendants,  and  denied  generally  the 
other  allegations.  The  cause  ultimately  reached  the  Audrain 
circuit  court  by  change  of  venue,  and  was  there  tried  before 
Judge  Hughes  and  a  jury.  Plaintiff  introduced  the  will  of  Dr. 
George  R.  Jacobs,  and  a  codicil  thereto.  Dr.  Jacolts  was  the 
father  of  John  T.  Jacobs  and  grandfather  of  the  latter's  chd- 
dren,  for  whose  use  and  benefit  this  action  was  brought.  He 
died  in  1877,  possessed  of  the  land  which  forms  the  subject  of 
the  action.  Defendants  claim  by  a  title  derived  from  the  said 
John  T.  Jacobs  through  a  sheriti^'s  sale  and  deed,  conveying  to 
the  defendant,  Mr.  Carter,  all  the  right,  title  and  interest  of 
John  T.  Jacobs  in  and  to  the  land  in  question.  It  is  conceded 
by  both  parties  that  under  the  will  of  his  father  John 
T.  Jacobs  was  the  beneficiary  of  one  undivided  fourth  part 
of  said  land  for  and  during  his  life,  and  that  his  children 
were  beneficiaries  of  the  remaining:  three-fourths.  After  makino; 
his  will,  the  testator.  Dr.  Jacobs,  signed  an  absolute  deed  to 
John  T.  Jacobs,  conveying  to  him  a  fee-simple  title  to  the  whole 
land;  but  plaintiff  denied  that  this  deed  was  ever  delivered  to 
the  grantee,  John  T.  Jacobs.  Upon  this  proposition  there  was  a 
conflict  of  testimony.  The  jury,  under  instructions  of  the  court, 
found  in  favor  of  plaintiff  on  this  issue.  That  decision  is  not 
sought    to    be    reviewed,  and   is  no  longer  controverted.     The 


APPOINTMENT    OF   TRUSTEES    TO    FILL    VACANCIES.  389 

deed,  being  thus  decided  inoperative,  left  John  T.  Jacobs  with 
no  other  or  greater  title  than  that  conferred  on  him  by  the  will, 
viz.,  a  beneficial,  undivided,  one-fourth  interest  during  his  life, 
which,  by  virtue  of  the  purchase  aud  sheritr's  deed,  has  been  ac- 
quired by  the  defendant  Mr.  Carter.  By  the  will  of  Dr.  Jacobs, 
Robert  B.  Prit  e,  of  Columbia,  was  named  as  trustee  to  hold  said 
land  iu  trust  for  the  use  of  John  T.  Jacobs  and  his  children,  in 
the  shares  above  indicated.  The  will,  as  modified  by  the  codicil, 
declared  that  during  the  life  of  John  T.  he  and  his  children 
should  enjoy  the  rents  and  profits  of  the  land  in  the  proportions 
aforesaid,  and  at  his  death  it  should  be  the  duty  of  the  trustee 
to  convey  the  land  to  his  descendants.  Furthermore,  that  if 
John  T.  preferred  to  live  on  the  estate,  and  cultivate  it,  the 
trustee  should  allow  him  to  do  so,  without  charging  him  rent 
therefor.  As  part  of  plaintiff's  case  he  introduced  the  record 
of  a  proceeding  in  the  circuit  court  of  Callaway  County  (where 
the  land  is  situated)  appointing  him  trustee  to  hold  said  land 
under  the  terms  of  the  will  of  Dr.  George  R.  Jacobs,  in  the  stead 
of  Mr.  Robert  B.  Price,  who  had  never  accepted  the  trust.  That 
proceeding  was  instituted  at  the  November  term,  1887,  by  John 
T.  Jacobs  and  his  children,  who  were  then  minors.  These  par- 
ties joined  in  a  petition  to  the  circuit  court,  stating  the  nature 
and  extent  of  the  trust  substantially  as  above  (but  with  greater 
particularity);  that  Robert  B.  Price,  the  trustee  named  in  the 
writ,  ♦'  refused,  failed,  and  declined  to  accept  the  office  and  trust 
as  said  trustee,  and  no  one  is  now  authorized  to  take  charge  of 
said  property;"  that  certain  of  the  petitioners  (naming  them) 
were  minors,  and  that  all  of  them  were  interested  in  the  rents  of 
said  hind;  and  praying  the  court  to  <' appoint  some  suitable 
person  to  act  as  trustee  under  said  will,  and  take  charge  and 
manage  said  real  estate,"  etc.,  and  for  general  relief.  This  peti- 
tion was  signed  by  attorneys  appearing  for  the  petitioners,  but 
no  guardian  or  next  fric^ndfor  the  minors  was  appointed.  Upon 
consideration  of  the  petition,  the  court,  November  28,  1887, 
made  an  order  "  that  Francis  Brandon  [the  plaintiff  who 
brought  the  action  now  at  bar]  be,  and  he  is  hereby,  appointed 
trustee  in  this  case."  Mr.  Price  was  not  a  party  to  that  pro- 
ceeding, and  defendants  claim  that  it  was  insufficient  to  vest  the 
title  to  the  land  in  plaintiff,  as  trustee  under  the  will;  but  the 
trial  judge  overruled  that  contention.  There  was  evidence  to 
support  the  other  issues  on  plaintiffs  part,  namely,  as  to  the 
po:ssession  (by  defendant  and  his  tenant)  of  the  land  in  contro- 
versy, and  as  to  plaintiff's  demands  for  rents,  profits,  damages, 
etc.  The  defendants  offered  considerable  evidence,  chiefly 
directed  to  the  question  of  the  delivery  of  the  deed  of  Dr.  Jacobs 


390  USES    AND    TRUSTS. 

to  John  T.  Jacobs  during  the  lifetiino  of  the  former  ;  but,  us  that 
issue  WAS  found  for  pbiintiff,  and  is  not  ni:uh;  the  .subject  of  ex- 
ception, the  instructions  and  rulings  on  tliat  branch  of  the  liti- 
gation need  not  l)e  set  forth.  The  jury  found  for  the  pl.iintiff, 
and  assessed  (hunages  and  monthly  rents  as  slated  in  the  opinion. 
eJudgment  was  entered  accordingly,  and  defendants  ajjpealed, 
after  an  unsuccessful  motion  for  a  new  trial.  The  other  essen- 
tial f;icts  appear  in  the  opinion. 

1.  The  tirst  assignment  of  error  disputes  the  correctness  of 
the  ruling  of  the  trial  court  touching  the  standing  of  the 
plaintitf  as  trustee  under  the  will  of  Dr.  George  R.  Jacobs. 
By  that  will  another  person  was  originally  named  as 
trustee,  but  plainlilf  was  substituted  in  his  stead  by  the 
action  of  the  circuit  court  ujjon  a  proceeding  for  that  pur- 
pose. That  action  defendants  attack  on  the  ground  that  Mr. 
Price,  who  was  named  as  trustee  in  the  will,  was  not  a  party 
to  the  proceeding.  By  the  statute  of  Missouri  (Rev.  St.  1889, 
§  6561),  adopting  the  great  body  of  the  common  law  as  jjart  of 
our  jurisprudence  (so  far  as  it  is  not  repugnant  to  our  local 
positive  law),  our  courts  are  invested  with  certain  general 
powers,  sometimes  called  inherent,  in  respect  of  certain  topics, 
among  which  is  that  of  trusts.  These  powers  form  an  acknowl- 
edged part  of  the  jurisdiction  of  our  courts.  Among  them  is 
the  power  to  appoint  a  trustee  when  a  trust  has  been  created  by 
will,  as  in  the  case  at  bar,  and  for  any  cause  there  is  need  of  a 
person  to  perform  it  ;  for  it  is  a  rule  of  chancery  jurispruilence, 
which  has  passed  into  a  maxim,  that  a  trust  will  never  b'^  allowed 
to  fail  for  want  of  a  truste-e.  There  is  a  statute  providing  for 
the  summary  appointment  of  trustees  in  certain  states  of  fact 
(Rev.  St.  1889,  §§  8683,  8684);  but  those  sections  do  not,  by 
their  terms,  purport  to  apply  to  trustees  under  wills.  More- 
over, it  is  settled  law  in  that  State  thata  statutory  jurisdiction  or 
remedy  does  not  extinguish  an  ancient  jurisdiction  of  the  courts 
of  equity  over  the  same  subject,  where  there  is  nothing 
in  the  statute  to  indicate  such  a  legislative  purpose.  The 
circuit  court  therefore  has  jurisdiction,  in  case  of  a  va- 
cancy, to  supply  a  trustee  to  assume  the  trust  defined  by 
the  will  of  Dr.  Jacobs  in  his  devise  for  the  benefit  of 
his  son  and  grandchildren.  But  was  there  a  vacancy?  The 
petition  of  the  beneficiaries  alleged  that  there  was,  charging 
that  Mr.  Price  had  refused  and  declined  to  accept  the  trust. 
The  court,  acting  on  their  allegations,  necessarily  must  have 
found  them  to  be  true,  by  its  order  appointing  plaintiff  as 
trustee.  If  there  was  a  vacancy  on  account  of  Mr.  Price's 
refusal  to   accept   the  trust  (as  stated  in  the  petition),  the  title 


APPOINTMENT    OF    TRUSTEES    TO    FILL    \ACANCIES.  39.1 

to  the  trust  estate  never  vested  in  him.  In  that  event  he  was 
not  a  necessary  party  to  the  proceeding  for  the  appointment  of 
the  truistee  to  fill'the  place  he  had  declined.  "  If  a  bill  should 
contain  certain  allegations  which  show  that  persons  who  other- 
wise would  ordinarily  be  proper  parties  have  no  interest  in  the 
controversy,  and  have  no  title  to  and  make  uo  claim  to  any 
interest,  such  allegations  in  the  frame  of  the  bill,  if  well 
founded,  will  dispense  with  the  necessitv  of  their  being  made 
parties."  Story  Eq.  Pi.  (1892,  10th  Ed"!),  §  2Ua.  Our  code 
sheds  no  light  on  this  point,  leaving  the  question  who  are  "  nec- 
essary" parties  open  for  construction.  Rev.  St.  1889,  §  1993. 
Acceptance  of  a  trust  is  necessary  to  the  vesting  of  title  in  the 
trustee.  It  may  be  often  implied,  or  established  by  inference  ; 
but  there  is  absolutely  nothing  before  the  court  in  the  present 
case  on  which  to  predict  an  inference  that  Mr.  Price  ever  ac- 
cepted the  trust  in  question,  "Disclaimer  may  be  established  by 
acts,  or  by  nonaction  long  continued  (Trask  v.  Donoghue 
[1826],  1  Aik.  370;  In  re  Robinson  [1867],  37  N.  Y.  261), 
and,  when  found  by  a  competent  court,  dispenses  with  the  ne- 
cessity of  making  the  disclaiming  trustee  a  party  to  the  proceed- 
ing to  supply  one.  Should  such  action  be  taken  upon  a  false 
suggestion  to  the  court,  the  trustee,  or  any  other  interested  per- 
son, injuriously  affected  thereby,  might  proceed  (by  direct 
methods)  to  set  the  court  right.  But  such  an  appointment,  at 
the  instance  of  beneficiaries,  being  a  subject-matter  within  the 
general  powers  of  a  court  of  equity,  cannot  be  successfully  at- 
tacked collaterally  where  the  subject  of  the  trust  is  within  the 
jurisdiction  of  the  court.  The  defendant  in  the  present  litiga- 
tion claims  no  title  derived  through  Mr.  Price.  His  only  right  in 
the  estate  is  as  the  purchaser  of  such  interest  as  John  T.  Jacobs 
enjoyed  as  beneficiary,  and  the  latter  was  one  of  the  petitioners 
for  the  appointment  of  a  trustee.  We  coincide  for  the  above  rea- 
sons, in  the  opinion  of  the  learned  trial  judge  that  Mr.  Price  was 
not  a  necessary  party  to  the  proceeding  in  which  plaintitfwas 
appointed  trusteee  of  this  trust  estate. 

2.  But  it  is  then  insisted  that  the  proceeding  is  fatally  defec- 
tive because  the  minors  therein  were  not  represented  by  any 
guardian,  curator,  or  next  friend,  as,  required  by  law.  There  ai  e 
at  least  two  answers  to  that  proposition.  First:  The  father  of  these 
minors  was  their  natural  guardian.  Rev.  St.  1889,  §  5279.  He 
was  joined  wiih  them  as  plaintiff,  and  was  authorized  ( in  the 
absence  of  any  showing  that  they  had  a  curator)  to  represent 
them  in  all  k-gal  proceedings.  Id.,  §§  1997,5298.  The  fact 
of  this  relationship  appeared  on  the  face  of  the  petition  for  ti)e 
appointment,  and  so  there  was  a  substantial  compliance  with  the 


392  USES    ANO    TRUSTS. 

requirements  of  l;i\v.  Second.  Our  statute  of  amendments 
doclarL'6  that  a  judgment  shall  not  be  stayed  or  reversed  (and 
for  stronger  reaxui  can  it  not  bo  avoided  coUaterally)  on  the 
ground  that  any  })arty  under  21  years  of  age  ai)|)eared  b^^  attor- 
ney, if  the  verdict  or  judgment  be  for  him.  Rev.  St.  1889, 
§  2113;  K.)binson  v.  Hood  (1878),  07  Mo.  6(50.  Having  thus 
con-sidercd  all  the  objections  to  tho  validity  of  the  a[)j)oinlment 
of  })laintiff  as  trustee,  we  conclude  that  tho  tiial  judge  was 
entirely  correct  in  holding  that  appointment  good  against  the 
collateral  attack  that  has  been  made  upon  it. 

3.  The  instruction  for  plaintiff  as  to  the  extent  of  the  recov- 
ery is  next  challenged,  because  it  is  supposed  to  warrant  a  ver- 
dict for  the  full  rental  value  of  the  premises,  whereas  it  is  said 
that  defendant  Mr,  Carter  was  at  least  entitled  to  one-fourth 
thereof  as  successor  to  the  rights  of  John  T.  Jacobs  under  the 
will  of  his  father.  The  instruction  reads  as  follows:  "The 
court  instructs  the  jury  that  if  they  find  for  the  plaintiff  the 
measure  of  damages  should  be  the  rental  value  of  the  land  from 
the  7th  day  of  March,  1888,  to  the  present  time,  not  to  exceed 
$2,000;  and  the  jury  should  find  for  the  monthl}'^  rents  not 
exceeding  $100  per  month."  It  may  be  that  this  language  is 
susceptible  of  the  construction  defendants  seek  to  {)ut  upon 
it.  But,  on  the  other  hand,  the  restdt  leaves  it  very  plain 
that  the  jury  were  not  misled  by  it  in  the  particular  complained 
of,  as  will  appear.  Along  with  it  was  another  declaration  by  the 
court,  given  at  defendant's  instance,  to  this  purport,  viz.  :  "  The 
court  instructs  the  juiy  tiiat  under  the  pleadings  and  the 
evidence  in  the  case  defendant  is  entitled  to  the  possession 
of  an  undivided  one-fourth  of  the  laud  in  question,  whether 
the  deed  from  Dr.  Jacobs  to  John  T.  Jacobs  was  delivered  or 
not ;  and  the  verdict  in  no  event  could  be  for  plaintiff  for 
more  than  three-fourths  of  the  land."  And  the  verdict  of  the 
jury  is  in  these  words:  "  We,  the  jury,  find  for  the  plaintiff 
as  to  the  three-fourths  of  the  land  described  in  the  petition, 
and  we  assess  the  damages  of  plaintiff  at  the  sum  of  $1,200; 
and  we  further  fiud  the  value  of  the  monthly  rents  and  profits 
of  said  three-fourths  of  paid  land  to  be  $33  1-3."  The  evidence 
as  to  rents  and  profits  is  not  })re>erved  for  review.  The  bill 
of  exceptions  states  that  the  plaintiff  gave  evidence  tending 
to  prove  the  issues  on  his  part,  and  the  defendants  on  their  part. 
We  must  hence  presume  the  verdict  sup[)orted  by  sufficient 
testimony.  Johnson  v.  Long  (1880),  72  Mo.  210.  But  beyond 
that  presumption  the  verdict  plainly  indicates  on  its  face  that  the 
jury  found  for  plaintiff  only  for  a  three-fourths  interest  in  the 
property,  and  thus  intended  to  and  did  give  defendants  the  full 


CONDITIONAL    LIMITATION    AS    AN   EXECUTORY   DEVISE.        393 

benefit  of  the  rule  of  recovery  stated  in  their  own  instruction. 
Hence  there  is  no  substantial  ground  for  complaint  by  them  in 
that  branch  of  the  case.  Plaintiff  does  not  complain  of  the  de- 
fendants' instruction,  so  wc  need  not  inquire  whether  it  was  pre- 
cisely accurate  as  defining  his  rights.  The  verdict  and  judgment 
certainly  conceded  to  defendants  all  they  can  justly  claim  on  th:it 
point.  This  court  is  not  authorized  to  reverse  a  judgment  on 
account  of  any  error  of  the  trial  court,  which,  in  the  result,  was 
not  prejudicial  to  the  substantial  rights  of  the  adverse  party  on 
the  merits.  Rev.  St.  1889,  §§  2100,  2303.  The  judgment 
should  be  and  is  affirmed. 

Black,  C  J.,  and  Brace,  J.,  concur.      Macfarlane,  J.,  having 
been  at  one  time  of  counsel,  did  not  take  part. 


CHAPTER     XIV. 

EXECUTORY  DEVISES. 

Brattle  Sq.  Church  v.  Grant,  3  Gray,  142. 

Mead  v.  Maben,  131  N.  Y.  255;  30  N.  E.  98. 

Thomae  v.  Thomae  (N.  J.  Eq.  1889),  18  Atl.  355. 

Smith  V.  Kimball,  153  111.  368;  38  N.  E.  1029. 

Dean  v.  Mumford,  102  Mich.  510;  61  N.  W.  7. 

Hale  V.  Hale,  125  111.  399;   17  N.  E.  470. 

Hughes  V.  Nichlas,  70  Md.  484;  17  A.  398. 

A  Conditional  Limitation  as  an  Executory  Devise. 

Brattle  Sq.  Church  v.  Grant,  3  Gray,  142. 

Certain  property  was  devised  to  the  present  deacons  of  the 
Church  of  Christ  in  Brattle  Square  in  Boston  and  their  successors 
forever,  *'  upon  this  express  condition  and  limitation,  that  is  to 
say,  that  the  minister  or  eldest  minister  of  said  church  shall  con- 
stantly reside  and  dwell  in  said  house  during  such  times  as  he  is 
minister  of  said  church;  and  in  case  the  same  is  not  improved 
for  this  use  only,  1  then  declare  this  bequest  to  be  void  and  of 
no  force,  and  order  that  said  house  and  land  then  revert  to  my 
estate,  and  I  give  the  same  to  my  nephew,  John  Hancock,  Esq., 
and  to  his  heirs  forever." 

BiGELOW,  J.  The  interesting  and  important  questions  involved 
in  the  present  case  are  now  for  the  first  time  brought  to 
our  consideration.  In  a  suit  in  equity  between  the  same  parties, 
which  was  pending  several  years  ago  in  this  court,  we  were  not 
called  upon  to  give  any  construction  to  the  clause  in  the  will  of 


394  EXECUTORY    DEVISES. 

Lydia  Hancock,  under  which  the  deacons  of  the  church  in  Brat- 
tle Square  and  their  successors  hold  the  estate  now  in  contro- 
versy. The  object  of  that  suit  was  widely  different  from  that 
of  the  present.  The  plaintiffs  then  assumed,  by  implication, 
that  they  were  bound  by  the  "  condition  and  liniitation  "  an- 
nexed to  the  devise,  and  the  validity  of  the  gift  over  on  breach 
of  the  condition  was  not  called  in  question  by  them.  The  sinnjlo 
purpose  then  sought  to  be  accomplished  was  to  ol)tain  authority 
to  sell  the  estate,  solely  on  the  ground  that,  from  various  causes, 
the  occupation  and  use  of  the  premises  for  a  private  dwelling 
and  especially  for  a  parsonage,  in  the  manner  prescribed  in  the 
will,  had  become  onerous  and  impracticable;  and  the  prayer 
of  the  bill  was  that  if  a  sale  was  authorized  the  proceeds 
might  be  invested  in  other  real  estate  to  be  held  on  the  same 
trusts  and  upon  the  like  condition  and  limitation  as  are  set 
out  and  prescribed  in  the  will  of  the  testatrix,  relative  to  the 
estate  therein  devised  to  the  deacons  and  their  successors.  It 
is  quite  obvious  that  on  a  bill  thus  framed  no  question  could 
arise  concerning  the  respective  titles  of  the  parties  to  the  suit 
under  the  devise.  They  were  not  put  in  issue  by  the  pleadings, 
and  no  decision  was  in  fact  made  in  regard  to  them.  That  suit 
was  tletermined  solely  upon  the  ground  that  the  case  made  by 
the  plaintiffs  was  not  such  as  to  warrant  the  court  in  making  a 
decree  for  a  sale  of  the  premises  upon  the  reasons  and  for  the 
causes  alleged  in  that  bill,  and  above  stated. 

The  case  is  now  brought  before  us  upon  allegations  and 
denials  which  directly  involve  the  construction  of  the  devise,  and 
render  it  necessary  to  determine  the  respective  rights  of  the 
devisees  and  heirs  at  law  to  the  estate  in  controversy.  In  order 
to  decide  the  questions  thus  raised  it  is  material  to  ascertain  in 
the  outset  the  legal  nature  and  quality  of  the  estate  which 
in  created  by  the  terms  of  the  devise  to  Timothy  Newell  and 
others,  deacons  of  the  church  in  Brattle  street.  If  the  gift 
had  been  solely  to  the  deacons  of  the  church  in  Brattle  street 
and  their  successors  forever,  without  any  condition  annexed 
thereto  concerning  its  use  and  occupation,  it  would  without 
doubt  have  vested  in  them  the  absolute  legal  estate  in  fee. 
By  the  provincial  statute  of  28  G.  2,  which  was  in  force  at  the 
time  of  the  death  of  the  testatrix,  the  deacons  of  all  Protestant 
churches  were  made  bodies  corporate,  with  power  to  take  in 
succession  all  grants  and  donations,  both  of  real  and  personal 
estate.  Anc.  Chart.  605.  The  words  of  the  devise  were  apt 
and  sufficient  to  create  a  fee  in  the  deacons  and  their  successors, 
and  they  were  legally  competent  to  take  and  hold  such  an  estate. 
It  therefore  becomes  necessary  to  consider  the  nature  and  effect 


CONDITIONAL    LIlvIlTATION    AS    AN    EXECUTORY   DEVISE.         395 

of  the  condition  annexod  to  the  gift;  how  far  it  qualifies  the  fee 
devised  to  the  deacons  and  their  successors;  and  what  was  the 
interest  or  estate  devised  over  to  John  Hancock  and  his  heirs 
forever,  upon  a  failure  to  comply  with  and  perforin  the  condi- 
tion. It  will  aid  in  the  solution  of  these  questions  if  we  arc 
able  in  the  first  place  to  doti'rmine,  with  clearness  and  accuracy, 
within  what  class  or  division  of  conditional  and  contingent 
estates  the  devise  in  question  falls. 

Strictly  speaking,  and  using  words  in  their  precise  legal  im- 
port, the  devise  in  question  does  not  create  simply  an  estate  on 
condition.  By  the  comnjon  law,  a  condition  annexed  to  real 
estate  could  he  preserved  only  to  the  grantor  or  devisor,  and  his 
heirs.  Upon  a  breach  of  the  condition  the  estate  of  the  grantee 
or  devisee,  was  not  ipso  facto  terminated,  but  the  law  permitted 
it  to  continue  beyond  the  time  when  the  contingency  upon  which 
it  was  given  or  granted  hajipened,  and  until  an  entry  or  claim 
was  made  by  the  grantor  or  his  heirs,  or  the  heirs  of  the  devisor, 
who  alone  had  the  right  to  take  advantage  of  a  breach.  2  Bl. 
Cora.  156;  4  Kent.  Com.  (6th  ed.  )  122,  127.  Hence  arose  the 
distinction  between  a  condition  and  a  conditional  limitation. 
A  condition,  followed  by  a  limitation  over  to  a  third  person 
in  case  the  condition  be  not  fulfilled,  or  there  be  a  breach 
of  it,  is  termed  a  conditional  limitation.  A  condition  deter- 
mines an  estate  after  breach,  upon  entry  or  claim  by  the 
grantor  or  his  heirs,  or  the  heirs  of  the  devisor.  A  limitation 
marks  the  period  which  determines  the  estate,  without  any  act 
on  the  part  of  him  who, has  the  next  expectant  interest.  Upon 
the  happening  of  the  prescribed  contingency,  the  estate  first 
limited  comes  at  once  to  an  end,  and  the  subsequent  estate 
arises.  If  it  were  otherwise,  it  would  be  in  the  power  of  the 
heir  to  defeat  the  limitation  over,  by  neglecting  or  refusing  to 
enter  for  breach  of  the  condition.  This  distinction  was  origi- 
nally introduced  in  the  case  of  wills,  to  get  rid  of  the  embar- 
rassment arising  from  the  rule  of  the  ancient  common  law,  that 
an  estate  could  not  be  limited  to  a  stranger,  upon  an  event 
which  went  to  abridge  or  destroy  an  estate  previously  limited. 
A  conditional  limitation  is  therefore  of  a  mixed  nature,  par- 
taking both  of  a  condition  and  of  a  limitation;  of  a  condition, 
because  it  defeats  the  estate  previously  limited;  and  of  a  limita- 
tion, because  upon  the  happening  of  the  contingency,  the  estaie 
passes  to  the  person  having  the  next  expectant  interest,  without 
entry  or  clumi. 

There  is  a  further  distinction  in  the  nature  of  estates  on  condi- 
tion, and  those  created  by  conditional  limitation,  which  it  may 
be  material  to  note.     Where  an  estate  in  fee  is  created  on    con- 


396  EXECUTORY    DEVISES. 

dition,  the  entire  interest  does  not  pasa  out  of  the  grantor  by 
the  same  instrument  or  conveyance.  All  that  remains  after  the 
gilt  or  grant  takes  effect  continues  in  the  grantor,  and  goes  to 
his  heirs.  This  is  the  right  of  entry,  as  we  have  already  seen, 
which,  from  the  nature  of  the  grant,  is  reserved  to  the  grantor 
and  his  heirs  only,  and  which  gives  them  the  right  to  enter  as 
of  their  old  estate,  upon  the  breach  of  the  condition.  This 
possibility  of  reverter,  as  it  is  termed,  arises  in  the  grantor  or 
devisor  immediately  on  the  creation  of  the  conditional  estate. 
It  is  otherwise  where  the  estate  in  fee  is  limited  over  to  a  third 
person  in  case  of  a  breach  of  the  condition.  Then  the  entire 
estate  by  the  same  instrument,  passes  out  of  the  grantor  or 
devisor.  The  first  estate  vests  immediately,  but  the  expectant 
interest  does  not  take  effect  until  the  happening  of  the  contin- 
gency upon  which  it  was  limited  to  arise.  But  both  owe  their 
existence  to  the  same  grant  or  gift;  they  are  created  uno  fiatu; 
and  being  an  ultimate  disposition  of  the  entire  fee,  as  well  after 
as  before  the  breach  of  the  condition,  there  is  nothing  left  in  the 
grantor  or  devisor  or  his  heirs.  The  right  or  possibility  of  re- 
verter, which  on  the  creation  of  an  estate  in  fee  on  condition 
merely,  would  remain  in  him,  is  given  over  by  the  limitation 
which  is  to  take  effect  on  the  breach  of  the  condition. 

One  material  difference,  therefore,  between  an  estate  in  fee  on 
condition  and  on  a  conditional  limitation  is  briefly  this,  that 
the  former  leaves  in  the  grantor  a  vested  right,  which,  by  its 
very  nature,  is  reserved  to  him  as  a  present  existing  interest, 
transmissible  to  his  heirs;  while  the  latter  passes  the  whole 
interest  of  the  grantor  at  once,  and  creates  an  estate  to  arise 
and  vest  in  a  third  person,  upon  a  contingency,  at  a  future  and 
uncertain  period  of  time.  A  grant  of  a  fee  on  condition  only 
creates  an  estate  of  a  base  or  determinable  nature  in  the  grantee, 
leaving  the  right  or  possibility  of  reverter  vested  in  the  grantor. 
Such  an  interest  or  light  in  the  grantor,  as  it  does  not  arise  and 
take  effect  upon  a  future  uncertain  or  remote  contingency,  is 
not  liable  to  the  ol)jection  of  violating  the  rule  against  perpetui- 
ties, in  the  same  degree  with  other  conditional  and  contingent 
interests  in  real  estate  of  an  executory  character.  The  possi- 
bility of  reverter,  being  a  vested  interest  in  real  property,  is 
capable  at  all  times  of  being  released  to  the  person  holding  the 
estate  on  condition,  or  his  grantee,  and,  if  so  released,  vests  an 
absolute  and  indefeasible  title  thereto.  The  grant  or  devise  of 
a  fee  on  condition  does  not  therefore  fetter  and  tie  up  estates  so 
as  to  prevent  their  alienation,  and  thus  contravene  the  policy  of 
the  law  which  aims  to  secure  the  free  and  unembarrassed  disposi- 
tion of  real  property.     It  is  otherwise  with  gifts  or  grants  of 


CONDITIONAL    LIMITATION    AS    AN    EXECUTORY   DEVISE.       397 

estates  in  fee,  with  liniitations  over  upon  a  condition  or  event  of  an 
uncertain  or  indeterminate  nature.  The  limitation  over  being 
executory  and  depending  on  a  condition,  or  an  event  which  may 
never  happen,  passes  no  vested  interest  or  estate.  It  is  impossi- 
ble to  ascertain  in  whom  tiie  ultimate  right  to  the  estate  may  vest, 
or  whether  it  will  ever  vest  at  all,  and  therefore  no  conveyance  or 
mode  of  alienation  can  pass  an  absolute  title,  because  it  is  wholly 
uncertain  in  whom  the  estate  will  vest  on  the  happening  of  the 
event  or  breach  of  the  condition  upon  which  the  ulterior  gift  is  to 
take  effect. 

Bearing  in  mind  these  distinctions,  it  is  obvious  that  the  de- 
vice in  question  was  not  the  gift  of  an  estate  on  a  condition 
merely,  but  it  also  created  a  limitation  over  on  the  happening 
of  the  prescribed  contingency  to  a  third  person  and  his  heirs 
forever.  It  was  therefore  a  conditional  limitation,  under  which 
general  head  or  division  may  be  comprehended  every  limita- 
tion which  is  to  vest  an  interest  in  a  third  person  on  condition 
or  upon  an  event  which  may  or  may  not  happen.  Such  limit- 
ations include  certain  estates  in  remainder  as  well  as  gifts  an<i 
grants  which,  when  made  by  will,  are  termed  executory  devises, 
and  when  contained  in  conveyances  to  uses  assume  the  name 
of  springing  or  shifting  nses  ;  1  Preston  on  Estates,  §§  40,  41, 
93;  5  Kent  Com.  (6th  ed. )  128,  note;  2  Fearne  Cont.  Rem. 
(10th  ed.)50;  IPow.Dev.  192  and  note  4  ;  1  Shep.  Touch.  126. 

That  the  devise  in  question  does  not  create  a  contingent  re- 
mainder in  John  Hancock  and  his  heirs  is  very  clear  upon 
familiar  and  well-established  principles.  There  is,  in  the  first 
place,  no  particular  estate  upon  the  natural  determination  of 
which  the  limitation  over  is  to  take  effect.  The  essence  of  a 
remainder  is  that  it  is  to  arise  immediately  on  the  termination 
of  the  particular  estate  by  lapse  of  time  or  other  determinate 
event,  and  not  in  abridgment  of  it.  Thus  a  devise  to  A  for 
twenty  years,  remainder  to  B  in  fee,  is  the  most  simple  illus- 
trration  of  a  particular  estate  and  a  remainder.  The  limitation 
over  does  not  arise  and  take  effect  until  the  expiration  of  the 
period  of  twenty  years,  when  the  particular  estate  comes  to  an 
end  by  its  own  limitation.  So  a  gift  to  A  until  C  returns  from 
Rome,  and  then  to  B  in  fee  constitutes  a  valid  remainder, 
because  the  particular  estate,  not  being  a  fee,  is  made  to  deter- 
mine upon  a  fixed  and  definite  event,  upon  the  happening  of 
which  it  comes  to  its  natural  termination.  But  if  a  g-ift  be  to 
A  and  his  heirs  till  C  returns  from  Rome,  then  to  B  in  fee, 
the  limitation  over  is  not  good  as  a  remainder,  because  the 
precedent  estate,  being  an  estate  in  fee,  is  abridged  and  brought 
to   an  abrupt   termination  by  the  gift  over  on  the  prescribed 


398  EXECUTORY    DEVISES. 

contingency.  One  of  the  tests,  therefore,  by  which  to  distin- 
guish between  estates  in  remainder  and  other  contingent  and 
conditional  interests  in  the  real  property  is  that  where  the  event 
which  gives  birth  to  the  ulterior  limitation,  determines  and 
breaks  off  the  preceding  estate  before  its  natural  termination, 
or  operates  to  abridge  it,  the  limitation  over  does  not  create  a 
remainder,  because  it  does  not  wait  for  the  regular  expiration 
of  the  preceding  estate.  1  Jarman  on  Wills,  780  ;  4  Kent  Com. 
197.  Besides,  wherever  the  gift  is  of  a  fee,  there  cannot  be  a 
remainder,  although  the  fee  may  be  a  qualified  or  determin- 
able one.  The  fee  is  the  whole  estate.  When  once  granted, 
there  is  nothing  left  in  the  donor  but  a  possibility  or  right  of 
reverter,  which  does  not  constitute  an  actual  estate :  4  Kent 
Cora.  10,  note;  Martin  v.  Strachan,  5  T.  E.  107,  note;  1  Jar- 
man  on  Wills,  792.  All  the  estate  vests  in  the  first  grantee, 
notwithstanding  the  qualification  annexed  to  it.  If,  therefore, 
the  prior  gift  or  grant  be  of  a  fee,  there  can  be  neither  partic- 
ular estate  nor  remainder;  there  is  no  particular  estate,  which 
is  an  estate  less  than  a  fee  ;  and  no  remainder,  because,  the  fee 
being  exhausted  by  the  prior  gift,  there  is  nothing  left  of  it  to 
constitute  a  remainder.  Until  the  happening  of  the  contin- 
gency, or  a  breach  of  the  condition  by  which  the  precedent 
estate  is  determined,  it  retains  all  the  characteristics  and  qualities 
of  an  estate  in  fee.  Although  defeasible,  it  is  still  an  estate  in 
fee.  The  prior  estate  may  continue  forever,  it  being  an  estate 
of  inheritance  ;  and  liable  only  to  determine  on  an  event  which 
may  never  happen.  For  this  reason  the  rule  of  the  common 
law  was  established  that  a  remainder  could  not  be  limited  after 
a  fee.  In  the  present  case  the  devise  was,  as  we  have  already 
stated,  a  gift  to  the  deacons  and  their  successors  forever;  and 
they  being  by  statute  a  quasi  corporation,  empowered  to  take 
and  hold  grants  in  fee,  it  vested  in  them,  ex  vi  termini ^  an 
estate  in  fee,  qualified  and  determinable  by  a  failure  to  comply 
with  the  prescribed  condition.  The  limitation  over,  therefore, 
to  John  Hancock  and  his  heirs  could  not  take  effect  as  a  re- 
mainder. 

It  necessarily  results  from  these  views  of  the  nature  and  qual- 
ity of  conditional  and  contingent  estates,  as  applicable  to  the 
devise  in  question,  that  the  limitation  of  the  estate  over  to  John 
Hancock  and  his  heirs,  after  the  devise  in  fee  to  the  deacons 
and  their  successors,  is  a  conditional  limitation,  and  must  take 
effect,  if  at  all,  as  an  executory  devise.  The  original  purpose 
of  executory  devises  was  to  carry  into  effect  the  will  of  the  tes- 
tator, and  give  effect  to  limitations  over,  which  could  not  operate 
as  contingent  remainders,  by  the  rules  of  the  common  law.     In- 


CONDITIONAL    LIMITATION    AS    AN    EXECUTORY    DEVISE.        399 

deed,  the  genenil  and  comprehensive  definition  of  an  executory 
devise  is  a  limitation  by  will  of  a  future  estate  or  interest  in 
land,  which  cannot,  consistently  with  the  rules  of  law,  take 
effect  as  a  remainder.  Every  devise  to  a  person  in  derogation 
of,  or  substitution  for  a  preceding  estate  in  fee  simple  is  an 
executory  devise.  4  Kent  Com.  264;  IJarman  on  Wills,  778; 
Lewis  on  Perp.  72;  6  Cruise  Dig.,  tit.  38,  c.  17,  §§  1,  2  ;  Pure- 
foy  V.  Rogers,  2  Saund.  388a,  and  note.  Thus  a  limitation  to  A. 
and  his  heirs,  and  if  he  die  under  the  age  of  twenty-one  years, 
then  to  B.  and  his  heirs,  is  an  executory  devise,  because  it  is  a 
limitation  of  an  estate  over  after  an  estate  in  fee.  This,  by  the 
rules  of  the  ancient  common  law,  would  have  been  void,  for  the 
reason  that  they  did  not  permit  any  limitation  over  after  the 
grant  of  a  previous  fee.  Whenever,  therefore  a  devisor  dis- 
poses of  the  whole  fee  in  an  estate  to  one  person,  but  qualifies 
this  disposition,  by  giving  the  estate  over,  upon  breach  of  a  con- 
dition, or  happening  of  a  contingency,  to  some  other  person, 
this  creates  an  executory  devise.  4  Kent.  Com.  268;  6  Cruise 
Dig.,  tit.  38,  c.  17,  §  2;  Bac.  Ab.  Devise,  I.;  1  Fearne  Cent. 
Eem.  399. 

In  the  case  at  bar  the  devise  is  to  the  deacons  and  their  suc- 
cessors in  this  office  forever.  By  itself  this  gave  to  them  an 
absolute  estate  in  fee  simple;  but  the  gift  in  fee  was  qualified 
and  abridged  l)y  the  condition  annexed,  and  by  the  limitation 
over  to  John  Hancock  and  his  heirs.  From  the  rules  and  prin- 
ciples which  we  have  been  considering  it  would  seem  to  be  very 
clear  that  the  devise  in  question  did  not  create  an  estate  on  con- 
dition, because  the  entire  fee  passed  out  of  the  devisor  by  the 
will;  no  right  of  entry  for  breach  of  the  condition  was  reserved, 
either  directly  or  by  implication,  toherself  or  her  heirs,  but  upon 
the  prescribed  contingency  it  was  devised  over  to  a  third  person 
in  fee.  It  did  not  create  an  estate  in  remainder  because  there 
was  no  particular  estate  which  was  first  to  be  determined  by  its 
own  limitation  before  the  gift  over  took  effect,  and  because,  the 
prior  gift  being  of  the  entire  fee,  there  was  no  remainder,  inas- 
much as  the  prior  estate  might  continue  forever.  It  did  create 
an  executory  devise,  because  it  was  a  limitation  by  will  of  a 
fee  after  a  fee,  which,  by  the  rules  of  law,  could  not  take  effect 
as  a  remainder. 

This  being  the  nature  of  the  devise  to  John  Hancock  and 
his  heirs,  it  remains  to  be  considered  whether  there  is  anything 
in  the  nature  of  the  gift  over  which  renders  it  invalid,  and  if 
so,  the  effect  of  its  invalidity  upon  the  prior  estate  devised  to  the 
deacons  and  their  successors.  Upon  the  first  branch  of  this 
inquiry,  the  only  question  raised  is  whether  the  gift  over  is  not 


400  EXECUTORY    DEVISE. 

made  to  take  effect  upon  a  contingency  which  is  too  remote,  as 
violating  the  well-established  and  salutary  rule  against  pepet- 
utics.  Executory  devises  in  their  nature  tend  to  perpetuities, 
because  they  render  the  estate  inalienable  during  the  period 
allowed  for  the  contingency  to  happen,  though  all  mankind 
should  join  in  the  conveyance.  They  cannot  be  aliened  or 
barred  by  any  mode  of  conveyance,  whether  by  fine,  or  recovery 
or  otherwise.  4  Kent  Com.  266;  2  Saund.  388a,  note.  Hence 
the  necessity  of  fixing  some  period  beyond  which  such  limita- 
tions should  not  be  allowed.  It  has  therefore  long  been  the 
settled  rulein  England,  and  adopted  as  part  of  the  common  law 
of  this  commonwealth,  that  all  limitations,  by  way  of  executory 
devise,  which  may  not  take  effect  within  the  term  of  a  life  or 
lives  in  being  at  the  death  of  the  testator,  and  twenty-one  years 
afterward,  as  a  term  in  gross,  or,  in  case  of  a  child  en  ventre  sa 
mere,  twenty-one  years  and  nine  months,  are  void  as  too  remote 
and  tending  to  create  perpetuities.  4  Kent  Com.  267;  1  Jar- 
man  on  Wills,  221;  4  Cruise  Dig.,  tit.  32,  c.  24,  §  18;  Night- 
ingale V.  Burrell,  15  Pick.  Ill;  see,  also,  Cadell  v.  Palmer,  1 
CI.  &  Fin.  372,  421,  423,  which  contains  a  very  full  and  elab- 
orate history  and  discussion  of  the  cases,  on  this  subject.  In  the 
application  of  this  rule,  in  order  to  test  the  legality  of  a  limita- 
tion, it  is  not  sufficient  that  it  be  capable  of  taking  effect  within  the 
prescribed  period  ;  it  must  be  so  framed  as  ex  necessitate  to  take 
effect,  if  at  all,  within  that  time.  If,  therefore,  a  limitation  is 
made  to  depend  upon  an  event  which  may  happen  immediately 
after  the  death  of  the  testator,  but  which  may  not  occur  until 
after  the  lapse  of  the  prescribed  period,  the  limitation  is  void. 
The  object  of  the  rule  is  to  prevent  any  limitation  which  may 
restrain  the  alienation  of  property  beyond  the  precise  period 
within  which  it  must  by  law  take  effect.  If  the  event  upon 
which  the  limitation  over  is  to  take  effect  may,  by  possibility, 
not  occur  within  the  allowed  period,  the  executory  devise  is  too 
remote,  and  cannot  take  effect.  Nightingale  v.  Burrell,  15  Pick. 
Ill;  4  Kent  Com.  283;  6  Cruise  Dig.,  tit.  38,  c.  17,  §  23. 
These  rules  are  stated  with  great  precision  in  2  Atkinson  ©n 
Conveyancing  (2d  ed.),  264. 

The  devise  over  to  the  heirs  of  John  Hancock  is  therefore 
void,  as  being  too  remote.  The  event  upon  which  the  prior 
estate  was  to  determine,  and  the  gift  over  take  effect,  might  or 
might  not  occur  within  the  life  or  lives  in  being  at  the  death  of 
the  testatrix,  and  twenty-one  years  thereafter.  The  minister  of 
the  church  in  Brattle  Square,  it  is  true,  might  have  ceased  con- 
stantly to  reside  and  dwell  in  the  house,  and  it  might  have  been 
improved   for  other  purposes,  within  a  year  after  the  decease  of 


CONDITIONAL    LIMITATION    AS    AN    EXECUTORY    DEVISE.       401 

the  testatrix ;  but  it  is  also  true  that  it  may  be  occupied  as  a  par- 
sonage, in  the  manner  prescribed  in  the  will,  as  it  has  hitherto 
been  during  the  past  seventy-five  years,  for  five  hundred  or  a 
thousand  years  to  come.  The  limitation  over  is  not  made  to 
take  effect  on  an  event  which  necessarily  must  happen  at  any 
fixed  period  of  time,  or  even  at  all.  It  is  not  dependent  on  any 
act  or  omission  of  the  devisees,  over  which  they  might  exercise 
a  control.  It  is  strictly  a  collateral  limitation,  to  arise  at  a  near 
or  remote  period,  uncertain  and  indeterminate,  and  contingent 
upon  the  will  of  a  person  who  may  at  any  time  happen  to  be 
clothed  with  the  office  of  eldest  minister  of  the  church  in  Brattle 
Square.  It  is  difficult  to  imagine  an  event  more  indefinite  as  to 
the  time  at  which  it  may  happen,  or  more  uncertain  as  to  the 
cause  to  which  it  is  to  owe  its  birth. 

The  more  common  cases  of  limitations  by  executory  devise, 
which  are  held  void,  as  contravening  the  rule  against  perpetui- 
ties, are  when  property  is  given  over  upon  an  indefinite  failure 
of  issue,  or  to  a  class  of  persons  answering  a  particular  descrip- 
tion, or  specifically  named  ;  as  to  the  children  of  A.,  who  shall 
attain  the  age  of  twenty -five,  or  to  a  person  possessing  a  certain 
qualification,  with  wiiich  he  will  not  be  necessarily  clothed  within 
the  prescribed  period.  So  gifts  to  take  effect  upon  the  extinc- 
tion of  a  dignity,  by  failure  of  the  lives  of  persons  to  whom  it 
is  descendible:  Bacon  v.  Proctor,  Turn.  &  Russ.  31;  Mack- 
worth  V.  Hinxman,  2  Keen,  658,  or  depending  on  the  contingency 
of  no  heir  male  or  other  heir  of  a  particular  person  attaining 
twenty-one,  no  person  being  named  as  answering  that  descrip- 
tion: Ker  V.  Lord  Dungannon,  1  Dru.  &  War.  509;  are  held 
invalid,  as  being  too  remote.  So,  too,  in  a  case  more  analogous 
to  the  present,  where  the  testator  devised  lands  to  trustees,  and 
directed  the  yearly  rents,  to  a  certain  amount  then  fixed  and 
named  in  the  will,  to  be  appropriated  for  certain  charitable  pur- 
poses; and  provided  that  in  the  event  of  there  being  a  new 
letting,  by  which  an  increase  of  rents  was  obtained,  the  surplus 
arising  from  such  increase  should  go  to  the  use  and  behoof  of 
the  person  or  persons  belonging  to  certain  families,  who,  for 
the  time  being,  should  be  lord  or  lords,  lady  or  ladies,  of  the 
manor  of  Downpatrick;  and  in  case  the  said  families  did  not 
protect  the  charities  established  by  the  will,  or  if  the  said  fami- 
lies should  become  extinct,  then  the  said  surplus  rents  were  to 
be  appropriated  to  said  charities,  in  addition  to  the  former  provis- 
ions for  the  charity;  it  was  held  that  the  gift  over  of  the  surplus 
rents  to  the  ttustees  for  the  charity  was  too  remote,  as  the  con- 
tingency upon  which  it  was  to  take  eflfect  was  not  restricted  to  the 
proper  limits.     Commissioners  of  Charitable  Donations  v.  Baron- 

2Q 


402  EXECUTORY    DEVISES. 

ess  De  Clifforcl,  1  Diu.  &  War.  245,  253.  In  this  case  Lord 
Chancellor  Sugden  says:  '*  This  is  a  clear  equitable  devise  of  a 
fee  qualified  or  limited;  a  fee  in  surplus  rents  for  this  family, 
so  long  as  they  shall  be  lords  and  ladies  of  the  manor  of  Down- 
patrick,  '  in  case  '  (and  I  must  read  the  words  *  in  case  '  as  if 
they  were  '  whilst,'  or  *  so  long  as  '),  certain  persons  protect  the 
almshouse,  etc. ;  and  thus  the  limitation  would  assume  the  same 
character  as  that  which  is  so  familiar  to  us  all,  viz.;  while  such 
a  tree  shall  stand,  or  the  happening  of  any  other  indifferent 
event.  Such  being  my  opinion  with  respect  to  the  estate  de- 
vised to  these  families,  I  must  hold  the  gift  over  void.  The  law 
admits  of  no  gift  over,  dependent  on  such  an  estate;  a  limitation 
after  it  is  void,  and  cannot  be  supported;  otherwise  it  would 
take  effect  after  the  time  allowed  by  law."  It  is  difficult  to  dis- 
tinguish that  case  from  the  one  at  bar.  The  contingency  of  the 
families  neglecting  to  protect  the  charities  established  by  the 
will,  in  that  case,  was  no  more  remote  than  that  of  the  failure 
or  omission  of  the  minister  of  the  church  for  the  time  being  to 
reside  and  dwell  in  the  house,  as  is  prescribed  by  the  will  in  the 
present  case.  Either  event  might  take  place  within  the  pre- 
scribed period,  but  it  might  not  until  a  long  time  afterward.  It 
can  make  no  difference  in  the  application  of  the  case  cited 
that  it  was  the  gift  of  an  equitable  fee-simple,  because  the 
limits  prescribed  to  the  creation  of  future  estates  and  interest 
are  the  same  at  law  and  in  equity.  Lewis  on  Perp.  169  ;  4 
Cruise  Dig.  tit.  32,  c.  24,  §  1 ;  Duke  of  Norfolk  v.  Howard,  1 
Vern.  164. 

But  it  is  quite  unnecessary  to  seek  out  analogies  to  sustain  this 
point,  as  we  have  a  direct  and  decisive  authority  in  the  case  of 
Welsh  V.  Foster,  12  Mass.  97.  It  was  there  held  that  a  limita- 
tion, in  substance  the  same  as  that  annexed  to  the  devise  in  the 
present  case,  being  made  to  take  effect  when  the  estate  should 
cease  to  be  used  for  a  particular  purpose,  was  void,  for  the  rea- 
son that  it  contravened  the  rule  against  perpetuities.  That  was 
the  case  of  a  grant  by  deed,  with  a  proviso  that  the  estate  was 
not  to  vest  **  until  the  millpond  [on  the  premises]  should  cease 
to  be  employed  for  the  purpose  of  carrying  any  two  mill- 
wheels  ;"  and  it  was  adjudged  that  the  rule  was  the  same  as  to 
springing  and  shifting  uses  created  by  deed,  as  that  uniformly 
applied  to  executory  devises  in  order  to  prevent  the  creation  of 
inalienable  estates.  The  limitation  was  therefore  held  invalid, 
as  depending  on  a  contingency  too  remote. 

The  true  test,  by  which  to  ascertain  whether  a  limitation  over 
is  void  for  remoteness,  is  very  simple.  It  does  not  depend  on 
the  character  or  nature  of  the  contingency  or  event  upon  which 


CONDITIONAL    LIMITATION    AS    AN    EXECUTORY    DEVISE.       403 

it  is  to  take  effect.  These  may  he  varii-d  to  any  extent.  But  it 
turns  on  the  single  question  whether  the  prescribed  contingency 
or  event  may  not  arise  until  after  the  time  allowed  by  law, 
within  which  the  gift  over  must  take  efiect.  Applying  this  test 
to  the  present  case,  it  needs  no  argument  or  illustration  to  show 
that  the  devise  over  to  John  Hancock  and  his  heirs  is  upon  n 
contingency  which  might  not  occur  within  any  prescribed  period, 
and  is  therefore  void,  as  being  too  remote. 

The  remaining  inquiry  is  as  to  the  effect  of  the  invalidity 
of  the  devise  over,  on  account  of  its  remoteness,  upon  the  pre- 
ceding gift  in  fee  to  the  deacons  and  their  successors  foiever. 
Upon  this  point  we  understand  the  rule  to  be  that  if  a  limitation 
over  is  void  by  reason  of  its  remoteness,  it  places  all  prior  gifts 
in  the  same  situation  as  if  the  devise  over  had  been  wholly 
omitted.  Therefore  a  gift  of  the  fee  or  the  entire  interest,  sub- 
ject to  an  executory  limitation  which  is  too  remote,  takes  effect 
as  if  it  had  been  originally  limited  free  from  any  divesting  gift. 
The  general  principle  applicable  to  such  cases  is  that  when  a 
subsequent  condition  or  limitation  is  void  by  reason  of  its  being 
impossible,  repugnant,  or  contrary  to  law  the  estate  becomes 
vested  in  the  first  taker,  discharged  of  the  condition  or  limita- 
tion over,  according  to  the  terras  in  which  it  was  granted  or 
devised  ;  if  for  life,  then  it  takes  effect  as  a  life  estate  ;  if  in  fee, 
then  as  a  fee  simple  absolute  :  1  Jaiinan  on  Wills,  200,  783  ;  Lewis 
on  Perp.  657  ;  2  Bl.  Com.  15fj  ;  4  Kent  Com.  130  ;  Co.  Lit.  206a, 
206b,  223a.  The  reason  on  which  this  rule  is  said  to  rest  is 
that  when  a  party  has  granted  ordevisodan  estate  he  shall  not  be 
allowed  to  fetter  ordefeat  it  byannexing  thereto  impossible, illegal, 
or  repugnant  conditions  or  limitations.  Thus  it  has  been  heldth.it 
when  land  is  devised  to  A.  in  fee,  and  upon  the  failure  of  is-uo  of 
A.,  then  toB.  in  fee,  and  thofiistestate  is  so  limited  thatit  cannot 
take  effect  as  an  estate  tail  in  A.,  the  limitation  over  to  B.  is  void, 
as  being  too  remote,  because  given  upon  an  indefinite  failuie  of 
issue,  and  the  estate  vests  absolutely  in  fee  in  A.,  discharged  of 
the  limitation  over.  So  it  was  early  held  that  where  a  testator 
devised  all  his  real  and  personal  estate  to  his  wife  for  life,  and 
after  her  death  to  his  son  and  his  heirs  forever,  and  in  case  of 
the  death  of  the  son  without  any  heir,  then  over  to  the  plaintiff 
in  fee,  the  devise  over  to  the  plaintiff  was  void,  and  the  son  took 
an  absolute  estate  in  fee;  Tilbury  v.  Barbut,  3  Atk.  617;  Tyte 
V.  Willis,  Cas.  temp.  Talb.  1  ;  1  Fearne  Cont.  Rem.  445.  So, 
too,  if  a  devise  be  made  to  A.  and  his  heirs  foiever,  and  for 
want  of  such  heirs  then  to  a  stranger  in  fee,  the  devise  over  to 
the  stranger  would  be  void  for  remoteness,  and  A.  would  take 
a  fee  simple  absolute.     Nottingham  v.  Jennings,  1  P.  W.  25  ; 


404  EXECUTORY    DEVISES. 

1  Pow.  Dev.  178,  179;  2  Saund.  388  a,  b;  1  Fearne  Cont. 
Rem.  467;  Attorney-General  v.  Gill,  2  P.  W.  369;  Busby 
V.  Salter,  2  Preston's  Abstracts,  164;  Kampf  v.  Jones,  2  Keen, 
756;  Ring  v.  Hardwick,  2  Beav.  352;  Miller  v.  Macomb,  26 
Wend.  229;  Ferris  v.  Gibson,  4  Edw.  Ch.  707  ;  Tator  v.  Tator, 
4  Barb.  431;  Conklin  v.  Conklin,  3  Sandf.  Ch.  64. 

Such  indeed  is  the  necessary  result  which  follows  from  the 
manner  in  which  executory  devises  came  into  being  and  were  in- 
grafted on  the  stock  of  the  common  law.  Originally,  as  has  been 
aheady  stated,  no  estate  could  be  limited  over  after  a  limitation 
in  fee  simple,  and  in  such  case  the  estate  became  absolute  in  the 
first  taker.  This  rule  was  afterward  relaxed  in  cases  of  devises, 
for  the  purpose  of  effectuating  the  intent  of  testators  so  far  as 
to  render  such  gifts  valid  by  way  of  executory  devise,  when 
confined  within  the  limits  prescribed  to  guard  against  perpetui- 
ties. If  a  testator  violated  the  rule  by  a  limitation  over  which 
was  too  remote,  the  result  was  the  same  as  if  at  common  law  he 
had  attempted  to  create  a  remainder  after  an  estate  in  fee.  The 
remainder  would  have  been  void,  and  the  fee  simple  absolute 
would  have  vested  in  the  first  taker.  6  Cruise  Dig.,  tit.  38,  c. 
12,  §  20;  Co.  Lit.  18  a,  271  b. 

The  rule  is,  therefore,  that  no  estate  can  be  devised  to  take 
effect  in  remainder  after  an  estate  in  fee  simple;  but  a  devise, 
to  vest  in  derogation  of  an  estate  in  fee  previously  devised,  may 
under  proper  limits  be  good  by  way  of  executory  devise.  If, 
after  a  limitation  iu  fee  by  will,  a  disposition  is  made  of  an  es- 
tate to  commence  on  the  determination  of  the  estate  in  fee,  the 
law,  except  in  the  case  of  a  devise  over  to  take  effect  within  the 
prescribed  period,  presumes  the  estate  first  granted  will  never 
end,  and  therefore  regards  the  subsequent  disposition  as  vain 
and  useless,  Shep.  Touch.  (Preston's  ed.)  417.  It  makes  no 
difference  in  the  application  of  this  rule  that  the  condition  on 
which  the  limitation  over  is  made  to  depend  is  not  7nala  in  se. 
It  is  sufficient  that  it  is  against  public  policy.  Thus  iu  a  recent 
case,  where  estates  were  limited  to  A.  for  ninety-nine  years, 
if  he  should  so  long  live,  remainder  to  the  heirs  male  of  his 
body,  with  a  proviso  that  if  A.  did  not  during  his  lifetime  ac- 
quire a  certain  dignity  in  the  peerage,  the  gift  to  his  heirs 
male  should  be  void,  and  the  estate  should  go  over  to  certain 
other  persons,  it  was  held  that  this  conditional  limitation  was 
made  to  depend  upon  a  condition  which  was  against  public  policy 
and  therefore  void,  and  that  the  estate  vested  in  the  eldest  son 
of  A.  as  heir  male,  discharged  of  the  gift  over.  Egerton  v.  Earl 
Brownlow,  4  H.  L.  Cas.  1.  So  in  the  case  at  bar  the  limitation 
over  being  upon  an  event  which  is  too  remote,  and  for  that 


CONDITIONAL  LIMITATION  AS  AN  EXECUTORY  DEVISE.  405 

reason  contrary  to  the  policy  of  the  law,  cannot  take  effect. 
The  estate  therefore  in  the  deacons  and  their  successors  remains 
unaffected  by  the  gift  over  to  John  Hancock  and  his  heirs. 
The  doctrine  on  this  point  is  briefly  and  clearly  stated  in  the 
Touchstone:  **  No  condition  or  limitation,  be  it  by  act  executed, 
limitation  of  a  use,  or  by  devise  or  last  will,  that  doth  contain 
in  it  matter  repugnant,  or  matter  that  is  against  law,  is  good. 
And  therefore,  in  all  such  cases,  if  the  condition  be  subsequent, 
the  estate  is  absolute  and  the  condition  void  ;  "  "  and  the  same 
law  is  for  the  most  part  of  limitations,  if  they  be  repugnant,  or 
against  law,  as  is  of  conditions  "  in  like  cases.  Shep.  Touch. 
129,  133.     See,  also,  4  H.  L.  Cas.  160. 

It  is  undoubtedly  true  that  this  construction  of  the  devise  de- 
feats the  manifest  purpose  of  the  testatrix,  which  was,  on  a  fail- 
ure to  use  and  occupy  the  premises  as  a  parsonage  in  the  manner 
described  in  the  will,  to  give  the  estate  to  John  Hancock  and  his 
heirs.  But  no  principle  is  better  settled  than  that  the  intent  of 
a  testator,  however  clear,  must  fail  of  effect  if  it  cannot  be  car- 
ried into  effect  without  a  violation  of  the  rules  of  law.  1  Pow. 
Dev.  388,  389. 

It  is  to  be  borne  in  mind,  however,  in  this  connection  that 
the  claim  set  up  by  the  heirs-at-law  of  the  testatrix  to  the  prem- 
ises in  controversy  is  in  direct  contravention  of  the  clear  intent 
of  the  will,  by  which  they  are  studiously  excluded  from  any 
share  or  interest  whatever  in  this  estate.  All  that  she  did  not 
specifically  devise  is  given  by  the  residuary  clause  to  John  Han- 
cock. Her  heirs  therefore  can  claim  only  by  virtue  of  an  arbi- 
trary rule  of  law  ;  and  it  certainly  more  accords  with  the  general 
intent  of  the  testatrix  that  the  absolute  title  in  this  estate  should, 
by  reason  of  the  invalidity  of  the  gift  over,  be  vested  in  the 
deacons  and  their  successors,  who  were  manifestly  the  chief 
objects  of  her  bounty  in  this  devise,  than  in  her  heirs-at-law, 
whom  she  so  carefully  disinherited.  The  court  will  not  con- 
strue a  conditional  limitation  as  a  mere  condition,  and  thus  de- 
feat the  estate  first  limited,  in  a  mode  not  contemplated  by  the 
testatrix. 

Nor  can  the  estate  in  question  pass  by  the  residuary  clause. 
The  testatrix  having  specifically  devised  the  entire  estate  to  the 
first  taker,  and  upon  the  happening  of  the  contingency  over,  to 
another  person,  could  not  have  intended  to  include  it  in  the 
gift  of  the  residue.  She  had  given  away  all  her  estate  and  in- 
terest in  the  property,  and  nothing  remained  to  pass  by  the 
residuary  clause.  2  Pow.  Dev.  102-104;  Hayden  v.  Stoughton, 
5  Pick.  538.  It  is  not  like  a  case  of  a  gift  on  a  valid  condi- 
tion, where  the   right  or  possibility   of  reverter  remain  in  the 


406  EXECUTORY    DEVISES. 

donor  or  devisor,  which  would  pass  under  a  residuary  clause,  or 
in  case  of  intestacy  to  the  heirs  of  the  donor  ;  but  it  is  the  case 
of  a  devise  in  foe  on  a  conditional  limitation  over,  which  is  void 
in  law.  There  is,  therefore,  no  possibihty  or  right  of  reverter 
left  ill  the  devisor,  which  can  pass  to  heirs  or  residuary  devisees, 
and  the  limitation  over  being  illegal  and  void,  the  estate  remains 
in  the  fir.-!t  takers,  discharged  of  the  divesting  gift.  Nor  does 
it  make  any  difference  in  the  application  of  this  well-settled  rule 
of  law  to  the  present  case  that  the  testatrix  in  terms  declares 
that  the  gift  to  the  deacons  and  their  successors  shall  be  void  if 
the  prescribed  conditions  be  not  fulfilled.  The  legal  effect  of 
all  conditional  limitations  is  to  make  void  and  terminate  the 
previous  estate  upon  the  happening  of  the  designated  contin- 
gency, and  to  vest  the  title  in  those  to  whom  the  estate  is 
limited  over  by  the  terms  of  the  gift  or  grant.  The  clause  in 
the  will,  therefore,  which  declares  the  gift  void  in  the  event  of 
a  breach  of  the  condition,  and  directs  that  the  premises  shall 
revert  to  her  estate,  does  not  change  the  nature  of  the  estate, 
nor  add  any  force  or  effect  to  the  condition  which  it  would  not 
have  had  at  law,  if  no  such  clause  had  been  inserted  in  the  will. 
It  is  simply  a  conditional  limitation.  The  condition,  being  ac- 
companied by  a  limitation  over  which  is  void  in  law,  fails  of 
effect,  and  the  estate  becomes  absolute  in  the  first  takers.  It 
could  not  revert  to  her  estate  because  there  was  no  reversion 
left,  the  whole  estate  being  limited  over  by  the  same  devise. 
Such  reversion  could  only  exist  in  case  of  a  simple  condition,  as 
we  have  already  seen ;  and  no  such  reverter  can  take  place  where 
the  condition  is  accompanied  by  a  limitation  over.  Besides,  and 
this  perhaps  is  the  more  satisfactory  view  of  a  devise  of  this 
nature,  the  condition  operates  only  as  a  limitation,  the  rule  being 
that  when  an  estate  is  given  over  upon  breach  of  a  condition, 
and  the  same  is  devised  by  express  words  of  condition,  yet  it 
will  be  intended  as  a  limitation  only.  In  all  cases  where  a 
clause  in  a  will  operates  as  a  condition  to  a  prior  estate,  and  a 
limitation  over  of  a  new  estate,  the  condition  takes  effect  only  as 
a  collateral  determination  of  the  prior  estate,  and  not  strictly  as 
a  condition.  Therefore  a  limitation  on  a  condition  or  contin- 
gency is  not  a  condition  ;  a  clause  creating  contingent  remainders 
or  executory  gifts  by  devise  is  properly  a  limitation,  and  though 
it  be  in  such  terms  as  to  defeat  another  estate  by  way  of  shifting 
use  or  executory  devise,  still  it  is,  strickly  speaking,  a  limitation. 
2  Cruise  Dig.,  tit.  16,  c.  2,  §  30  ;  Shep.  Touch.  117,  126;  Vent. 
202;  Carter,  171. 

The  case  of    Austin  v.  Camebridgeport  Parish,  21  Pick.  215, 
cited  and  relied  upon  by  the  defendant  Hancock,  is  widely  dif- 


CONDITIONAL  LIMITATION  AS  AN  EXECUTORY  DEVISE.         407 

ferent  fiom  the  case  at  bar.  That  w.'is  a  grant  by  deed  of  an 
estate,  defeasible  on  a  condition  subsequent,  which  was  legal 
and  valid.  The  possibility  of  reverter  was  in  the  grantor  and 
his  heirs  or  devisees  ;  the  residue  of  the  estate  was  vested  in  his 
grantee,  the  parish.  The  two  interests  united  made  up  the  en- 
tire fee-simple  estate,  and  were  vested  in  persons  ascertainable 
and  capable  of  conveying  the  entire  estate.  There  was  nothing, 
therefore,  in  that  case  which  resembled  a  perpetuity,  or  re- 
strained the  alienation  of  real  property.  The  conditional  estate 
in  the  parish,  and  the  possibility  of  reverter  in  the  devisees  of 
the  grantor,  were  vested  estates  and  interests  capable  of  con- 
veyance and  constituting  together  an  entire  title  or  estate  in  fee 
simple.  This  is  very  ditfercnt  from  an  executory  devise,  where 
only  the  conditional  estate  is  vested,  and  the  persons  to  whom 
the  limitation  over  is  made  are  uncertain  and  incapable  of  being 
ascertained  until  the  prescribed  contingency  happens,  however 
remote  that  event  may  be.  No  conveyance  of  such  an  estate, 
by  whomsoever  made,  could  vest  a  good  title,  because  it  can 
never  be  made  certain  until  after  a  breach  of  the  condition,  in 
whom  the  estate  is  to  vest.  Besides,  in  that  case  there  was 
nothing  illegal  or  contrary  to  the  policy  of  the  law,  in  the  crea- 
tion of  the  estate  by  the  original  grantor.  The  case  of  Hay- 
den  V.  Stoughton,  5  Pick.  528,  to  which  reference  has  also  been 
made,  did  not  raise  any  question  as  to  the  remoteness  of  the 
gift  over,  because  it  there  vested,  according  to  the  construction 
given  to  the  will,  within  twenty  years  from  the  death  of  the 
testator,  and  therefore  within  the  prescribed  period.  In  the  case 
of  Brigham  v.  Shattuck,  10  Pick.  306,  the  court  expressly  avoid 
any  decision  on  the  validity  of  the  devise  over,  and  decide  the 
case  upon  the  ground  that  the  demandant  had  no  title  to  the 
premises  in  controversy. 

The  result,  therefore,  to  which  we  have  arrived  on  the  whole 
case  is  that  the  gift  over  to  John  Hancock  is  an  executory  de- 
vise, void  for  remoteness;  and  that  the  estate,  upon  breach  of 
the  prescribed  condition,  would  not  pass  to  John  Hancock  and 
his  heirs  by  virtue  of  the  residuary  clause,  nor  would  it  vest  in 
the  heirs-at-law  of  the  testatrix.  But  beinQj  an  estate  in  fee  in 
the  deacons  and  their  successors,  and  the  gift  over  being  void, 
as  contrary  to  the  policy  of  the  law,  by  reason  of  violating  the 
rule  against  perpetuities,  the  title  became  absolute,  as  a  vested 
remainder  in  fee,  after  the  decease  of  the  mother  of  the  testa- 
trix, in  the  deacons  and  their  successors,  and  they  hold  it  in  fee 
simple,  free  from  the  divesting  limitation. 

A  decree  may,  therefore,  be  entered  for  the  sale  of  the  estate 
as  prayed  for  in  the  bill,  and  for  a  reinvestment  of  the  proceeds 


408  EXECUTORY    DEVISES. 

for  the  objects  and  purposes  intended  to  be  effected  by  the  trusts 
declared  in  the  will  respecting  the  property  in  question. 


Limitation  over  on  Death  of  First  Devisee  without  Children. 

Mead  v.  Maben,  131  N.  Y.  255;  30  N.  E.  98. 

Gray,  J.  Upon  the  accounting  of  these  executors,  the  ques- 
tion arose  as  to  the  distribution  of  the  share  in  the  testator's 
estate  which  was  given  by  his  will  to  a  daughter,  since  deceased. 
It  is  claiuied  on  the  one  hand  by  her  administrator,  and  on  the 
other  by  the  other  children  of  the  testator.  This  daughter,  in 
dying,  left,  her  surviving,  a  husband  but  no  issue.  Turning  to 
the  testator's  will  for  a  determination  of  this  question,  we  find, 
in  the  first  three  clauses,  that  he  made  certain  important  be- 
quests. In  the  fourth  clause  he  gave  the  rest  of  his  property  to 
his  executors,  to  be  disposed  of  as  thereinafter  provided.  The 
fifth  clause  gave  them  a  discretionary  power  of  sale  as  to  the 
realty,  and  directed  them  to  make  a  division  of  the  whole  estate 
into  seven  equal  parts.  To  each  one  of  his  seven  children  was 
given  one  of  such  parts,  and,  until  the  sale  of  the  realty  its  in- 
come was  to  be  paid  over  to  them  in  the  same  proportions. 
Then  follow  clauses  which  are  quoted  in  their  entirety.  **  Sixth. 
If  my  said  daughter  Diademia  shall  die  without  leaving  her 
will,  all  the  share  and  interest  remaining  hereby  given  to  her 
shall  be  equally  divided  among  my  other  children.  Seventh.  If 
my  son  Jonathan  shall  die  without  having  left  his  will,  then  I 
direct  my  executors,  if  they  shall  deem  it  proper  and  expedient, 
that  they  may  give  to  any  child  or  children  of  my  son  Jonathan 
the  whole  or  any  part  of  the  share  remaining  herein  given  him  ; 
otherwise,  such  remaining  share  or  interest  shall  be  equally 
divided  between  ray  other  children.  Eighth.  If  any  of  my 
children  except  Diademia  shall  die  without  leaving  surviving 
child  or  children  or  heirs  of  the  body,  then  the  share  or  portion 
of  my  estate  so  given  to  such  deceased  child  shall  go  equally  to 
my  other  children,  but  in  the  manner  and  subject  to  the  like 
limitations  as  the  specific  bequests  to  each  of  them  as  has  been 
hereinbefore  provided  and  given."  The  seven  children  sur- 
vived their  father,  who  died  within  a  few  days  of  the  execution 
of  his  will.  Of  his  children  but  two  were  unmarried,  namely, 
Diademia,  who  is  40  years  old,  and  is  referred  to  in  the  sixth 
clause;  and  Abigail,  who  subsequently  married,  and  died  child- 
less. It  is  her  husband  who  now  claims  that  she  took  an  abso- 
lute interest  in  her  father's  estate,  which  was  not  divested  by  her 
death  without  issue. 


LIMITATION    OVER    ON    DEATH    OF    FIRST    DEVISEE.  409 

The  justices  of  the  general  term  below,  upon  whose  concur- 
rence in  opinion  a  decision  by  the  surrogate  adverse  to  the  claim 
of  Abigail's  administrator  was  reversed,  deemed  themselves 
bound  by  the  rule  that  where  a  testamentary  gift  is  simply  to 
one  or  more  persons,  and  in  case  of  the  death  of  any  one  of 
them  without  i^sue,  to  survivors,  the  death  referred  to  means  a 
death  in  the  life-time  of  the  testator,  and  the  prior  legatee  sur- 
viving the  testator  takes  absolutely.  2  Jarm.  Wills  752.  They 
concede  that,  if  there  was  any  provision  which  would  qualify  the 
effect  of  that  general  rule  upon  such  language  in  a  testamentary 
gift,  it  should  be  considered,  and  an  apparent  contrary  intention 
shotdd  be  sustained.  But  as  they  regarded  the  testamentary 
provisions,  there  was  nothing  to  prevent  the  application  of  that 
general  rule  of  construction;  and  hence  they  held  that  the  death 
referred  to  in  the  eighth  clause  was  that  which  should  occur  in 
the  testator's  lite-time,  and  that,  as  Abigail  survived,  she  took 
an  indefeasible  estate.  We  think  the  appeal  should  prevail  and, 
that  there  are  sufficient  indications  in  this  will  of  the  testator's 
intending  the  death  of  his  children  under  the  eighth  clause  to  be 
a  death  occurring  at  any  time.  The  eighth  clause  of  this  will  is 
not  substitutionary  merely.  The  scheme  of  the  will  and  the  con- 
text seem  to  indicate,  strongly,  a  distinct  purpose  to  prevent  a 
sharing  in  the  testator's  estate  by  others  than  his  children  or 
their  issue.  In  all  the.  authorities  which  are  referred  to  upon 
the  subject  of  the  application  of  the  general  rule  above  referred 
to,  the  courts  —  as,  indeed,  does  Mr.  Jarman,  upon  the  authority 
of  whom  the  courts  have  more  or  less  relied  — assume  that  the 
context  of  the  will  is  silent,  and  that  the  instrument  contains 
nothing  indicating  an  intention  which  interferes  with  the  applica- 
tion of  this  rule,  Vanderzee  v.  Slingerland,  103  N.  Y.  47  ;  8 
N.  E.  Eep.  247.  The  rule  must  yield  if,  upon  consulting  the 
other  provisions  of  a  will,  we  can  find  a  warrant  for  importing 
into  the  language  used  by  the  testator  the  natural  and  an  ordinary 
significance.  It  cannot  be  denied  that  the  ordinary  import  of 
the  words,  *'  if  any  of  my  children  shall  die,"  is  that  of  a  death 
of  any  of  them  at  any  time;  and  there  are  evidences  in  this  will 
that  not  only  such  was  the  probable  intention  of  the  testator,  but 
that  to  give  a  different  construction  to  the  language  would  be 
to  thwart  an  apparent  and  a  natural  purpose  of  keeping  his 
estate  from  the  possession  of  strangers  in  blood. 

There  was  effected  under  the  directions  in  the  fifth  clause  of 
this  will  an  equitable  conversion  of  the  realty  into  personalty  as 
of  the  time  of  testator's  death.  That  it  was  intended  that  each 
child  should  take  his  or  her  share  as  of  that  time  seems  evident 
from  the  gift  of  the  income  arising  intermediate  the  time  of  the 


410  EXECUTORY    DEV18E8. 

testator'8  death  and  the  sale  by  the  executor  of  the  realty. 
While,  however,  each  child  took  a  vested  interest  in  the  seventh 
part  of  the  estate  upon  the  testator's  death,  subsequent  clauses 
of  the  will  annexed  conditions  to  their  ownership,  which  provided 
for  the  distribution  of  the  shares  so  given,  either  as  in  the  cases 
of  Diademia  and  of  Jonathan,  should  they  die  intestate,  or  as  in 
the  cases  of  the  other  children,  and  including  Jonathan  too,  should 
they  die  without  leaving  surviving  issue.  It  is  in  the  considera- 
tion of  these  clauses  that  we  find  the  circumstances  which  com- 
pel us  to  give  to  the  testator's  words  in  the  eighth  clause  the 
broader  meaning  of  a  provision  for  the  case  of  a  death  of  a  child 
at  any  time.  In  the  sixth  clause  when  he  provides  that  if, 
♦'  Diademia  shall  die  without  leaving  her  will,"  all  her  share  and 
interest  remaining  ♦*  shall  be  equally  divided  among  my  other 
children,"  he  obviously  contemplates  her  death  after  him.  Her 
right  to  will,  and  the  direction  to  divide  the  ♦'  share  or  interest 
remaining,"  sufficiently  indicate  that  understanding.  So,  when, 
in  the  seventh  clause,  he  provides  that,  if  '*  Jonathan  shall  die 
without  having  left  his  will,"  the  executors  have  the  discretion- 
ary power  to  give  "  the  whole  or  any  part  of  the  share  remain-* 
ing  "  to  any  of  his  children,  or,  ♦'  otherwise,"  are  to  divide  "  such 
remaining  share  "  equally  among  testator's  other  children,  it  is 
a  clear  indication  of  a  testamentary  purpose  to  be  effectuated  in 
the  case  of  Jonathan's  death  intestate  after  the  testator.  When, 
then,  in  the  eighth  clause,  we  find  the  provision  that  "  if  any  of 
my  children  except  Diademia  shall  die  "  without  issue,  <'  the 
share  so  given  to  such  deceased  child  shall  go  equally  to  my 
other  children,"  the  testator  must  be  deemed  to  have  used  the 
words  *' shall  die  "  in  the  same  association  of  ideas  as  he  had 
just  previously  used  them,  namely,  of  the  child's  death  after 
him,  and  while  in  possession  of  his  or  her  share,  and  with  the 
intention  of  providing  for  the  event  of  a  child  dying  without 
leaving  children  to  take  the  share.  This  idea  is  enforced  by  the 
exception  of  Diademia  from  the  operation  of  the  testamentary 
direction  in  this  clause.  In  her  case,  a  woman  forty  years 
of  age  and  unmarried,  she  was  given  the  right  to  dispose  by  will 
of  her  share, —  a  right  and  favor  greater  than  were  conferred 
upon  the  other  children,  for  even  Jonathan  was  not  excepted  in 
the  eighth  clause.  In  the  seventh  clause,  which  related  to  him, 
his  right  to  will  the  share  was  only  in  the  event  of  his  leaving 
issue.  The  eighth  clause  placed  him  in  the  same  category  with 
the  children,  other  than  Diademia,  in  the  event  of  his  leaving  no 
issue  him  surviving.  The  words  "  shall  die,"  in  this  eighth 
clause,  should  be  read,  not  only  in  connection  with  an  associa- 
tion of  ideas  dominant  at  the  time,  by  natural  sequence,  in  the 


REVERSION  OF  ESTATE  UNDISPOSED  OF  BY  EXECUTORY  DEVISE.  411 

testator's  mind,  but  as  well  in  llio  li<:;ht  of  an  evident  and  con- 
templated purpose  to  prevent  at  any  time,  by  reason  of  the 
death  of  a  child  before  as  well  as  after  testator,  the  passing  of 
his  property  into  any  hands,  save  into  those  of  a  child  or 
descendants,  except  in  the  one  peculiar  case  of  the  daughter 
Diademia,  who  was  pertnitted  to  will  away  the  share  which  came 
to  her,  and  wliose  marriage  and  p()ssil)ility  of  issue  were  not  con- 
sidered. That  this  eighth  clause  covers  the  case  of  a  death  either 
before  or  after  the  testator's  seems  plain,  too,  because  it  makes 
the  gift  over,  if  a  child  shall  die  without  issue,  "  in  the  manner 
and  subject  to  the  like  limitations  as  the  sj)ecific  bequests  to 
each  of  them  has  been  hereinbefore  provided  and  given." 
The  expression  may  perhaps  not  be  very  happy ;  but,  nevertheless, 
of  necessity  it  must  have  a  reference  to  a  disposition  by  the  tes- 
tator, upon  or  at  the  time  of  his  death,  as  to  the  nature  of  the 
interest  which  should  vest  in  each  child,  and  be  held  by  him  or 
her  after  his  death,  and  until  he  or  she  shall  die. 

We  agree  with  the  learned  justice  who  dissented  at  the  gen- 
eral term  in  thinking  that  in  this  case  the  intention  of  the  tes- 
tator is  better  carried  into  effect  by  following  the  literal  meaning 
of  the  language  of  his  eighth  clause  than  artificial  rules  of  con- 
struction. Where  the  testator's  intention  is  concealed,  and 
context  is  siltnt,  and  circumstances  are  wanting  to  aid  us,  the 
application  of  such  a  general  rule  is  proper  enough  and  safe;  but 
where  the  courts  can  make  out  the  testator's  probable  intention, 
and  it  can  be  carried  into  effect  without  violating  any  rule  of  law 
or  statute,  no  general  rule  may  rise  above  it.  The  judgment  of 
the  general  term  should  be  reversed,  and  the  decree  of  the  surro- 
gate should  be  affirmed,  with  costs.  All  concur,  except  May- 
nard,  J.,  absent. 


Reversion  of  Estate  Undisposed  of  by  Executory  Devise. 

Thomae  v.  Thomae  (N.  J.  Eq.  1889),  18  Atl.  Rep.  355. 

Bird,  V.  C.  The  testatrix  gave  to  her  husband  and  uncle,  as 
executors  and  as  trustees,  "  all  my  real  and  personal  estate,  to  be 
held  by  them  in  trust  for  the  benefit  of  my  children;  and  I  direct 
that  the  income  arising  from  the  same  shall  be  under  the  control 
of  my  said  husband,  for  the  maintenance  of  my  children.  In 
case  of  the  death  of  both  of  my  children  during  the  life-time  of 
my  husband,  I  direct  that  the  income  shall  be  paid  to  my  hus- 
band during  his  natural  life."  One  of  the  executors  and  trustees 
refused  to  qualify,  and  the  other  has  since  been  discharged. 
The  complainant,  as  administrator  de  bonis  non  is  doubtful  what 


412  EXECUTORY    DEVISES. 

interest  the  children  of  the  testatrix  take  under  the  said  will. 
This  gift  is  of  the  princi[)al  in  trust,  for  the  benefit  of  the 
children  of  the  testatrix,  the  income  thereof  to  be  paid  to  them 
without  any  qualification  or  limitation,  except  in  case  of  the 
death  of  the  children  of  the  testatrix  in  the  life-time  of  the  hus- 
band, and  then  the  limitation  is  expressly  limited  to  his  life-time. 
In  such  event  he  has  an  interest  so  long  as  he  shall  thereafter 
live.  There  is  no  disposition  made  of  the  principal  or  income. 
This,  then,  being  an  absolute  gift  of  principal  to  be  held  in 
trust  for  the  children  of  the  testatrix,  and  also  a  distinct  direction 
that  the  income  shall  be  paid  to  them,  it  is,  in  my  judgment,  an 
absolute  gift  of  the  principal  for  the  benefit  of  the  children,  sub- 
ject only  to  the  gift  of  the  income  in  the  husband,  in  case  he 
shall  survive  the  children,  during  the  remainder  of  his  life-time. 
At  his  death  the  estate  will  descend  to  those  who  will  be  entitled 
to  any  other  estate  of  which  the  said  children  may  die  seised. 
To  accomplish  this  result,  it  was  not  necessary  that  the  gift 
should  be  to  the  heirs  of  the  said  children.  Then,  besides  the 
gift  of  the  principal  thus  made  so  absolute,  the  general  rule  that 
the  gift  of  the  income  of  a  fund,  or  of  therentsand  profits,  with- 
out limitation,  carries  the  corpus^  is  applicable  in  this  case. 
House  V.  Evven,  37  N.  J.  Eq.  3(J8,  373;  Gulick  v.  Gulick,  25  N. 
J.  Eq.  324  ;  Huston  v.  Read,  32  N.  J.  Eq.  591  ;  Craft  v.  Spook, 
13  N.  J.  Eq.  121.  And  as  to  income  from  real  estate,  Jones  v. 
Stites,  19  N.  J.  Eq.  324  ;  3  Greenl.  Cruise.  229  ;  O'Hara  Wills, 
61;   Hardy  v.  Redman,  3  Cranch  C.  C.  635. 


Limitation  of  an   Executory  Devise   on    Failure   of    Issue  — 
Heirs  Construed  to  Mean   Issue. 

Smith  u.  Kimball,  153  111.  368;  38  N,  E.  1029. 

Magruder  J.  This  is  a  bill  for  the  specific  performance  of  a 
contract  for  the  sale  of  real  estate,  filed  by  appellant  against 
appellee.  The  bill  was  answered,  and,  after  hearing  had,  the  cir- 
cuit court  found  the  equities  with  the  defendant,  and  dismissed 
the  bill.  The  present  appeal  is  prosecuted  from  such  decree  of 
dismissal.  By  the  terras  of  the  contract,  appellee  agreed  to  pur- 
chase lot  3,  hereinafter  mentioned,  of  appellant,  for  $9,000,  pay- 
able, $100  in  cash,  and  "  the  balance  in  twenty  days  after  receiving 
an  abstract  showing  good  title"  in  appellant.  The  abstract  of  the 
title  was  furnished  within  the  20  days, and  appellee  refused  tocarry 
out  the  purchase,  upon  the  ground  that  the  abstract  did  not  show 
a  good  fee-simple  title  in  appellant.  Appellant  holds  by  deed 
from  Frederick  Mohlenpaugh,  who  received  a  conveyance  from 


LIMITATION    ON    FAILURE    OF    ISSUE.  413 

Sarah  Jane  Du8tan.  8:irah  Jane  Dustan,  whose  maiden  name 
was  Sarah  Jane  Spears,  derived  her  title  through  the  will  of  her 
mother,  Abiojail  Spears.  There  is  no  question  that  Abigail 
Spears  had  good  title,  and  that  appellant  owns  whatever  title 
was  obtained  by  Sarah  Jane  Spears  (afterwards  Dustan)  under 
said  will.  The  question  in  dispute  arises  upon  the  construction 
of  the  will  of  Abigail  Spears,  which  was  executed  on  January 
28,  1854,  and,  after  providing  for  the  payment  of  funeral  ex- 
penses, is  as  follows:  *'  Second.  My  just  debts  are  to  be  paid, 
and  I  appoint  Alexander  Tulloe,  of  Joliet,  my  executor.  I 
also  will  and  direct  that  forty  acres  of  land  lying  in  Will 
County,  State  of  Illinois,  shall  be  sold,  and,  after  discharging 
the  above  expenses,  the  balance  shall  become  and  be  the 
property  of  my  daughter,  Sarah  Jane  Spears.  I  also  direct 
that  lot  No.  3,  in  block  No.  21,  in  Joliet,  Illinois,  with  its 
appurtenances,  as  deeded  to  me  by  David  Richards  and  wife,  and 
also  all  my  interest  in  the  lot  of  land  now  occupied  by  David 
Wooley,  of  La  Porte  County,  State  of  Indiana,  also  my  interest 
in  the  estate  of  my  grandfather,  Francis  Lucas,  all  be  and  be- 
come the  property  of  my  daughter,  Sarah  Jane  Spears;  and, 
should  the  said  Sarah  Jane  Spears  die  leaving  no  heirs,  I  will  and 
direct  that  all  of  the  above-described  properly  shall  be  equally 
divided  between  my  sisters,  to  wit,  Olinda  Wooley,  Deborah 
Wooley,  Sarah  Jane  Wooley,  Elizabeth  Johnson  ;  and  it  is  my 
wish  that  my  sisters,  Deborah  and  Sarah,  shall  have  the  care  and 
charge  of  my  daughter,  Sarah  Jane  Spears."  Abigail  Spears 
died  on  February  4,  1854,  and  left,  her  surviving,  her  daughter, 
the  said  Sarah  Jane  Spears,  who  afterwards  married  a  man  named 
Dustan,  and  has  children  living.  The  will  was  admitted  to 
probate  on  February  11,  1854. 

What  title  did  Sarah  Jane  Spears  take  to  the  above  described 
lot  3  under  the  will  of  her  mother?  The  testatrix  directs  that 
said  lot  3,  and  all  her  interest  in  the  lot  occupied  by  David 
Wooley,  also  her  interest  in  her  grandfather's  estate, 
"  shall  be  and  become  the  property  of  my  daughter,  Sarah 
Jane  Spears."  No  words  of  inheritance,  such  as  "  and  her 
heirs,"  are  here  used.  This  language  would,  at  common  law, 
only  have  given  a  life  estate  in  the  land.  But  section  13  of 
the  conveyance  act  provided  that  "every  estate  in  land  which 
shall  be  granted,  conveyed  or  devised,  although  the  words  here- 
tofore necessary  to  transfer  an  estate  of  inheritance  be  not  added, 
shall  be  deemed  a  fee  simple  estate  of  inheritance,  if  a  less  estate 
be  not  limited  by  express  words,  or  do  not  appear  to  have  been 
granted,  conveyed  or  devised  by  construction  or  operation  of 
law,"     Therefore  the  clause  directing  that  lot  3  "  shall  be  and 


414  EXECUTORY    DEVISES. 

become  the  property  of  my  daughter,"  standing  alone,  and 
without  being  qualified  in  any  way  by  the  language  following  it, 
vests  in  the  daughter  a  fee  transmissible  to  her  heirs,  notwith- 
standing the  omission  of  the  word  ♦'  heirs."  Baker  v.  Scott,  62 
111.  86;  Walker  v.  Pritchard,  121  111.  221;  12  N.  E.  336; 
Wolfer  V.  Hemmer,  144  III.  554;  33  N.  E.  751.  Is  a  less 
estate  limited  by  the  words  that  follow,  and,  if  so,  what  estate? 
Those  words  are  "and,  should  the  said  Sarah  Jane  Spears  die 
leaving  no  heirs,  I  will  and  direct  that  all  of  the  above  described 
property  shall  be  equally  divided  between  my  sisters  " 

In  view  of  the  construction  thus  placed  upon  the  first  clause, 
as  being  a  clause  which,  standing  alone,  vests  a  fee  in  the  devisee, 
it  is  manifest  that  this  is  a  case  where  the  fee  in  the  first  instance 
is  conveyed  to  the  first  taker  ;  but  an  effort  is  made  to  transfer 
this  fee,  upon  the  happening  of  a  specified  contingency,  from 
the  first  taker  to  others,  by  way  of  executory  devise.  In  other 
words  an  attempt  is  made  to  mount  a  fee  upon  a  fee,  and  this 
can  only  be  done  by  executory  devise.  '*  An  executory  devise  is 
a  limitation  by  will  of  a  future  contingent  interest  in  lands,  con- 
trary to  the  rules  of  limitation  of  contingent  estates  in  convey- 
ance at  law."  4  Kent.  Comm.,  marg.,  p.  264.  It  is  one  of  the 
rules  governing  contingent  remainders  that  an  estate  cannot  be 
limited  over  to  another  after  a  fee  already  granted.  A  remain- 
der implies  something  left,  and  there  can  be  nothing  left  after 
the  whole  has  been  once  disposed  of.  It  is  for  this  reason  that 
a  fee  already  granted  cannot  be  defeated  and  transferred  to 
another  by  way  of  remainder.  Hence  the  devise  over,  **  should 
the  said  Sarah  Jane  Spears  die  leaving  no  heirs,"  can  only  be 
sustained,  if  at  all,  as  an  executory  devise,  and  not  as  a  contin- 
gent remainder.  To  prevent  perpetuities  in  executory  devises  it 
is  an  established  rule  that,  in  case  of  such  a  devise,  the  contin- 
gency upon  which  the  intended  limitation  is  to  take  effect  shall 
not  be  postponed  longer  than  a  life  or  lives  in  being  and  21  years 
and  a  fraction  of  another  year  thereafter.  If  the  contingency  is 
not  fixed  within  that  period,  the  executory  devise  is  bad,  and  the 
limitation  is  void  for  remoteness  ;  but,  if  it  is  so  fixed,  the  devise 
is  good,  and  the  limitation  is  valid.  In  the  present  case  the 
determination  of  the  question  whether  the  contingency  upon  which 
the  limitation  is  to  take  effect  is  too  remote,  and  by  consequence, 
whether  the  limitation  itself  is  void  or  not  depends  upon  the  con- 
struction to  be  given  to  the  words  "  and  should  the  said  Sarah 
Jane  Spears  die  leaving  no  heirs."  The  limitation  to  the  sisters 
of  the  testatrix  is  dependent  upon  the  event  that  the  daughter 
should  die  '*  leaving  no  heirs."  Do  these  words  import  a  definite 
or  indefinite  failure  of  issue?     A  definite  failure  of  issue  is  where 


LIMITATION    ON    FAILURE    OF    ISSUE.  415 

a  precise  time  is  fixed  by  the  will  for  the  failure  of  issue;  as  in 
the  case  of  a  devise  to  A.,  but,  if  he  dies  without  issue  living  at 
the  time  of  his  death,  then  to  another.  An  indefinite  failure  of 
issue  means  a  failure  of  issue  whenever  it  may  happen,  without 
fixing  any  time,  or  a  certain  and  definite  period  within  which  it 
must  hai)pen.  4  Kent  Coram.,  marg.  p.  274;  1  Bouv,  Law 
Diet.,  p.  642.  An  executory  devise  which  is  to  take  effect  upon 
an  indefinite  failure  of  issue  is  void  for  remoteness.  4  Kent 
Comra.,  marg.  p.  274.  The  words  '*  dying  without  issue,"  or 
*'  die  without  issue,"  when  standing  alone,  are  held  by  the  great 
weight  of  authority  in  England  and  in  this  country  to  denote  an 
indefinite  failure  of  issue,  and  a  limitation  upon  such  terms, 
unqualified,  is  regarded  as  void  for  remoteness.  2  Washb.  Real 
Prop.,  marg.  pp.  360,  361.  But  the  courts  often  avail  themselves 
of  slight  circumstances  to  give  to  executory  devises  a  construc- 
tion which  regards  the  failure  of  issue  as  relating  to  a  definite 
period  of  time,  and  not  an  indefinite  failure.  Id.y  marg.  p. 
362.  "  Slight  circumstances  are  laid  hold  of  as  sufficient  to 
indicate  an  intention  that  a  limitation  over  on  death  without 
issue  shall  take  effect  at  a  definite  time,  to  wit,  on  the  death  of 
the  first  taker."  2  Redf.  Wills  (3d  Ed.),  marg.  p.  277,  and 
note  51;  Bedford's  Appeal,  40  Pa.  St.  18.  The  words  "die 
without  leaving  issue  surviving,"  or  '*  leaving  no  issue  or  child," 
or  "  if  he  should  leave  no  children,"  have  been  held  to  create  a 
definite  failure  of  issue.  Nicholson  v.  Bettle,  57  Pa.  St.  386; 
Hillt'.  Hill,  74  Pa.  St.  173;  Clapp  v.  Fogelmau,  1  Dev.  &  B. 
Eq.  466;  Wiirht  V.  Baury,  7  Cush.  105;  Van  Dyke  v.  Vander- 
pool,  14  N.  J7  Eq.  198;  Fairchild  v.  Crane,  13  N.  J.  Eq.  105; 
Hull  V.  Eddy,  14  N.  J.  Law,  169  ;  Eaton  v.  Straw,  18  N.  H.  320; 
Hall  V.  Chaff'ee,  14  N.  H.  215;  Goodell  v.  Hibbard,  32  Mich. 
47;  Grier  v.  Griswold,  18  Ga.  550;  Flinn  v.  Davis,  18  Ala.  132; 
Smith  V.  Harris,  16  Ga.  545. 

In  the  case  at  bar  the  words  are  '•  die  leaving  no  heirs."  The 
word  "  heirs  "  may  sometimes  be  construed  to  mean  "  children  " 
or  *'  issue  "  according  to  the  context.  Loveday  v.  Hopkins,  1 
Amb.  273;  Smiths.  Harris,  supra;  Goodell  v.  Hibbard,  supra; 
Griswoldi?.  Hicks,  132111.494;  24  N.  E.  63  ;  Summers  v.  Smith, 
127  111.  645;  21  N.  E.  191.  In  the  will  now  under  consideration 
the  word  evidently  means  "children"  because  if  the  intention 
was  to  include  heirs  generally,  the  sisters  of  the  testator,  who 
were  to  take  upon  the  happening  of  the  contingency,  being  the 
aunts  of  the  daughter,  might  be  included  among  her  heirs.  It 
could  hardly  have  been  the  intention  of  the  testator  that  her 
sisters  should  take  in  the  event  of  her  daughter  dying  with- 
out leaving  these  same  sisters  as    her    heirs.     But,  while  the 


416  EXECUTORY    DEVISES. 

word  '*  heirs"  is  here  evidently  intended  to  mean  "  children," 
it  unquestionably  refers  to  children  as  tlie  heirs  of  the  devisee. 
The  word  ** heirs"  is  ordinarily  used  in  wills  to  designate  those 
persons  who  answer  this  description  at  the  death  of  the  testator. 
The  word  "  heir,"  in  its  strict  and  technical  import,  applies  to 
the  person  or  persons  appointed  to  succeed  to  the  estate  in  case 
of  intestacy.  Kellett  v.  Shepard,  139  111.  433;  28  N.  E.  751, 
and  34  N.  E.  254.  Those  who  succeed  to  the  estate  are  those 
who  are  understood  to  be  living  at  the  time  of  the  intestate's 
death.  If  this  view  be  correct,  the  words  •'  should  the  said 
Sarah  Jane  Spears  die  leaving  no  heirs,"  mean  '*  should  the  said 
Sarah  Jane  Spears  die  leaving  no  children  a^  the  time  of  her 
death."  This  construction  receives  support  from  the  fact  that 
the  persons  who  are  to  take  in  the  event  of  the  death  of  the 
dauofhter  leaving  no  heirs  were  in  existence  at  the  time  of  the 
making  of  the  will,  and  are  mentioned  by  name.  Mention  of 
the  sisters  as  being  then  alive,  and  the  designation  of  two  of 
them  to  take  the  care  and  the  charge  of  the  daughter,  are  facts 
which  do  not  consist  with  the  idea  that  those  sisters  were  to  take 
the  estate  if,  at  any  time  in  the  future,  no  matter  how  remote, 
the  heirs  of  Sarah  Jane  Spears  should  become  extinct.  Parish 
V.  Ferris,  6  Ohio  St.  563;  Niles  v.  Gray,  12  Ohio  St.  320; 
Armstrong  v.  Armstrong,  14  B.  Mon.  333;  Daniel  v.  Thomp- 
son, Id.  663;  Bullock  v.  Seymour,  33  Conn.  289;  Hudson  v. 
Wadsworth,  8  Conn.  348. 

In  the  recent  case  of  Summers  v.  Smith,  127  111.  645;  21  N. 
E.  191,  the  language  of  the  will  was  :  "  It  is  further  my  will,  in 
case  any  of  my  sons,"  etc.,  "should  die  without  heirs  of  his 
body,  the  real  estate  I  have  bequeathed  to  him  shall  go  to  his 
surviving  brother  or  brothers."  It  was  held  that,  where  the 
devise  over  is  to  the  survivor  or  survivors  of  a  class  to  which 
the  first  devisee  belonged,  it  means  a  devise  to  a  person  in  being 
at  the  death  of  the  first  devisee,  and  so  relieves  the  devise  over 
of  objection  on  account  of  remoteness;  and  it  was  there  said: 
*'  In  the  absence  of  anything  appearing  to  the  contrary,  language 
must  be  presumed  to  have  been  intended  to  have  the  legal  effect 
which  the  law  assigns  to  it.  So,  therefore,  here,  *  dying  without 
heirs  of  body  '  could  only  mean  dying  without  leaving  such  heirs 
of  body  as  the  estate  would  have  vested  in,  in  fee,  instantly, 
upon  the  death  of  the  first  devisee,  as  children,"  etc.  The  rule, 
as  announced  by  the  English  cases,  is  that  a  devise  in  fee,  with 
a  remainder  over  if  the  devisee  dies  without  issue  or  heirs  of  the 
body,  is  a  fee  cut  down  to  an  estate  tail;  and  the  limitation 
over  is  void,  by  way  of  executory  devise,  as  being  too  re- 
mote and  founded  on  an  indefinite    failure    of    issue.     4  Kent 


LIMITATION   ON   FAILURE    OF    ISSUE.  417 

Comm.,  maig.  \).  27G.  But  section  6  of  the  Illinois  con- 
veyance act  provides  tliat  "  in  cases  where,  by  the  common 
hiw,  any  [)ers()n  or  persons  might  hereafter  become  seized, 
in  fee  tail  of  any  lands,  tenements  or  hereditaments,  by  virtue 
of  any  devise,  gift,  giant,  or  other  conveyance,  hereafter  to  be 
made,  or  by  any  other  means  whatsoever,  such  person  or  per- 
sons, instead  of  being  or  becoming  seized  thereof  in  fee  tail, 
shall  be  deemed  and  adjudged  to  be  and  become  seized  thereof 
for  his  or  her  natural  life  only,  and  the  remainder  shall  pass  in 
fee  simple  absolute  to  the  person  or  persons  to  whom  the  estate 
tail  would,  on  the  death  of  the  first  grantee,  devisee  or  donee  in 
tail  first  pass,  accoidiug  to  the  course  of  the  common  law,  by 
virtue  of  such  devise,  gift,  grant  or  conveyance."  1  Starr  & 
C.  Ann.  St.,  p.  571.  Hence  the  same  reasons  for  holding  that 
the  words  *'  die  leaving  no  heirs"  refer  to  issue  indefinitely  or 
a  failure  of  issue  at  any  time,  rather  than  to  a  failure  of  issue 
at  the  death,  do  not  exist  in  this  State,  where  we  have  no 
estates  tail,  as  exist  where,  as  at  common  law,  estates  tail  are 
recognized.  Summers  v.  Smith,  supra.  In  Voris  v.  Sloan,  68 
III.  588,  the  words  "  in  case  she  should  die  without  issue" 
occurring  in  a  deed  of  ti'ust,  were  construed  to  mean,  *'  without 
having  had  issue  ;  "  so  that,  upon  the  birth  of  a  child  or  children 
of  the  body,  the  contingency  was  fulfilled,  and  the  fee  vested 
in  them,  and  the  limitation  over  was  defeated.  But  the  plain 
and  obvious  meaning  of  the  expression  "  should  the  said  Surah 
Jane  Spears  die  leaving  no  heirs  "  or  children  is  that  she 
should  die  leaving  no  heirs  or  children  at  the  time  of  her  death. 
This  construction  accords  with  the  grammatical  relation  of  the 
words  in  the  phrase,  and  with  the  common  understanding  of 
their  import.  Williams  v.  Lewis,  100  N.  C.  142;  5  S.  E.  435; 
Hall  V.  Chaffee,  14  N.  H.  215. 

The  necessary  result  of  this  construction  by  which  the  words 
in  question  are  held  to  import  a  definite,  and  not  an  indefinite, 
failure  in  issue,  is  that  the  devise  to  Sarah  Jane  Spears  must  be 
regarded  as  the  devise  of  a  fee  determinable  upon  her  dying 
without  leavino;  children  at  the  time  of  her  death.  Summers  v. 
Smith,  supra.  It  cannot  be  known  until  the  death  of  Mrs. 
Dustan  whether  the  contingency  will  happen  by  which  the  limit- 
ation over  is  to  take  effect.  If  she  dies  leaving  no  children  at 
the  time  of  her  death,  her  mother's  sisters  will  take  the  prop- 
erty ;  but,  if  she  leaves  a  child  or  children  at  that  time,  such 
child  or  children  will  take  the  property  as  her  heirs.  It  follows 
that  appellant  did  not  have  such  a  fee-simple  title  as  was  called 
for  by  the  contract,  and  the  decree  of  the  court  below  was  right. 

It  is  most  strenuously  contended  by  counsel  for  appellant  that 

27 


418  EXECUTORY   DEVISES. 

tlio   words  "  (lie   leaving   no   heirs"  refer   to   the   death  of  tlie 
devisee  in  the  lifetime  of  the  testatrix,  and  that,  as  she  survived 
the  testatrix,  the  fee  simple  vested  in  her.     Several  cases  in  New 
York  and  Pennsylvania  are   referred  to  which  seem  to  sustain 
this  view.     But  they  are  not  ai)plicable   here,  for  the  reasons 
involved  in  the  observations  already  made.     "  When  the  death 
of  the  tirst  taker  is  coupled  with  other  circumstances,  which  may 
or  may  not  ever  take  place  —  as,  for  instance,  death  under  age 
or  without  children  — the  devise  over,  unless  controlled  by  other 
provisions   of  the  will,  takes   effect,  according   to  the  ordinary 
and  literal  meaning  of  the  words,  "  upon  death  "  under  the  cir- 
cumstances indicated,  at  any  time,  whether  before  or  after  the 
death  of  the  testator.     Britton  v.  Thornton,  112  U.  S.  520;  5 
Sup.  Ct.  591;  Buchanan  v.  Buchanan,  90  N.  C.  308;  5  S.  E. 
430;  Summers  v.  Smith,  supra;  11  Am.  &  Eng.  Enc.  Law,  p. 
919.     The  language  of  the   provisions   in  the   will   sustains  the 
view  that  the  death  of  the  devisee  in  the  lifetime  of  the  testatrix 
was   not   intended.     The   testatrix   wills  and  directs  that  forty 
acres   of    land    be    sold,  "and    after    discharging    the    above 
expenses,"  the  balance  shall  become  and  be  the  property  of  my 
daughter.     The  ''above  expenses"  included  funeral  expenses, 
which,  of  course,  could  not  be  incurred  until  after  the  death  of 
the  testatrix.     The  last  clause   directs  that  "all   of  the  above- 
descril)ed  property  shall  be  equally  divided  between  my  sisters  " 
should  the  daughter  die  leaving  no  heirs.     "  All  of  the  above- 
described  property  "  includes  the  balance  of  the  proceeds  of  the 
sale  of  the  forty  acres  after  paying  funeral  and  other  expenses, 
which  balance  could  not  exist  until  after  the  death  of  the  testa- 
trix; and,  as  the  distribution  to  the  sisters  could  not  take  place 
until  after  the  death  of  the  daughter,  the  death  of  the  daughter 
must  have  been  contemplated  as  occurring  after  that  of  the  tes- 
tatrix.    We  think,  however,  that  the  court  belovv  should  have 
dismissed  the  bill  without  prejudice,  so  as  to  leave  appellant  to 
his  remedy  at  law.     The  decree  of  the  circuit  court  will  accord- 
ingly be  reversed,  and  the  cause  is  remanded  to  that  court,  with 
directions  to  dismiss  the  bill  without  prejudice.     Eeversed  and 
remanded,  with  directions. 


Rule  of  Perpetuity. 

Dean  v.  Mumford,  102  Mich.  510;  61  N.  W.  7. 

Montgomery,  J.  Complainant,  as  one  of  the  legatees  named 
in  the  will  of  Horace  M.  Dean,  filed  this  bill  against  the  defend- 
ants Mumford  and  Frank  Dean,  executors,  and  the  codefendants 


RULE    OF    PEKI'ETUITY.  419 

a"^  legatees,  asking  a  construction  of  the  terms  of  the  will,  if  held 
valid,  and  asserting  that  it  is  as  a  whole  invalid,  in  equity.  A 
preliminary  question  is  rnised  as  to  the  jurisdiction,  it  being 
claimed  l)y  defendants  that,  except  at  the  suit  of  a  trustee  or 
crsfui  que  trust  who  asks  a  direction  as  to  the  execution  of  a 
trust,  a  court  of  chancery  has  no  jurisdiction  to  construe  a  will 
or  declare  any  or  all  of  its  provisions  invalid.  But,  however 
this  may  be,  the  executors  have  answered,  in  this  case,  and  in 
terms  submitted  the  question  of  construction  of  the  will  to  the 
court.  As  it  is  undoubted  that  they  might  have  invoked  the 
jurisdiction  of  the  court  for  that  purpose  by  a  bill,  we  think  that, 
they  having  submitted  the  question,  the  court  may  pioperly 
maintain  jurisdiction.  Sawtellei?.  Ripley  (Wis. ),  55  N.  W.  156. 
The  material  parts  of  the  wdl  are  as  follows  :  "  First.  I  give 
and  bequeath  to  my  beloved  wife,  Mary  C.  Dean,  the  use  of  the 
homestead  now  occupied  by  us.  No.  83  State  street,  together 
with  all  the  furniture  and  other  personal  property  thereon  and 
connected  therewith,  to  be  used  and  enjoyed  by  her  durmg  her 
natural  life  as  a  home  for  herself,  and  for  such  of  my  children 
as  shall  remain  unmarried,  and  shall  be  agreeable  to  her.  The 
taxes  and  rei)airs  ui^m  said  homestead  to  be  paid  by  my  execu- 
tors from  my  estate.  Second.  I  also  give  and  bequeath  to  my 
said  wife  the  sum  of  fifteen  hundred  dollars  i)er  annum,  to  be 
paid  to  her  quarterly  or  monthly  by  my  executors,  as  she  may 
desire,  to  be  received,  used,  and  enjoyed  by  her  during  her  nat- 
ural life.  Third.  All  the  rest,  residue,  and  remainder  of  all  the 
goods,  chattels,  real  and  personal  estate  of  whatsoever  kind  or 
nature,  or  wheresoever  the  same  may  be  situated,  I  desire  to  be 
divided  equally  between  my  five  children,  —  Edgar  S.,  aged  38; 
Arch.  H.,  aged  30;  Herbert  L.,  aged  28  ;  Frank,  aged  26;  and 
Lizzie,  aged  23,  — or  to  the  survivors  of  them,  excepting  in  case 
any  of  them  shall  die  leaving  child  or  children  surviving. 
Then,  in  such  case,  the  respective  interests  of  my  sons 
and  daughters  above  named  shall  go  to  and  belong  to 
the  child  or  children  surviving  them,  respectively.  Fourth. 
Whereas  I  have  advanced  to  my  sons  Edgar  S.  and  Arch.  H. 
certain  sums  of  money,  which  will  appear  charged  to  them  upon 
my  books,  and  if  I  should  advance  to  them  or  either  of  them,  or 
others  of  my  ciiildien,  during  my  lifetime,  other  sums,  all  such 
sums  in  money  or  property  which  I  shall  advance  to  or  pay  for 
and  shall  charge  to  them,  respectively,  shall  be  deducted  from 
the  res[)ective  portions  above  designated  to  go  to  my  said  chil- 
dren. Fifth.  I  hereby  will  and  direct  that  the  portions  herein- 
before designated  for  my  said  sons  Edgar  S.,  Arch.  H.,  and 
Herbert  L.,  be  held  in  trust  by  ray  executors,  as  trustees  for  my 


420  EXKCUTORY    DEVISES. 

said  sons,  llicir  wives  and  children,  and  tlie  interest,  income,  and 
profit  thereof  be  used  and  paid  as  in  the  judgment  of  my  said 
executr>rs  shall  be  best  for  the  support  and  maintenance  of  my 
said  three  sons,  their  wives  and  children,  during  the  lives  of  my 
said  sons  and  their  wives  ;  and  upon  the  decease  of  my  said  sons 
!ind  th(!ir  wives  the  portion  so  held  in  trust  by  my  said  executors 
shall  become  the  property  of  and  go  to  the  child  or  children  of 
said  sons,  severally,  and  their  heirs  and  assigns  forever." 

It  is  the  conteuCion  of  complainants — First,  that  the  first  and 
second  clauses  make  the  taxes  and  rei^airs  and  annuity  a  charge 
upon  the  estate,  and  create  a  trust  in  favor  of  the  widow  which 
continues  during  her  life  ;  and,  second,  that,  if  this  be  not  so 
held,  then  under  any  construction  which  may  be  given  to  the  fifth 
clause,  the  power  of  alienation  is  susj)ended  for  a  longer  period 
than  during  two  lives  in  being,  and  that  for  this  reason  the  trust 
created  in  the  fifth  clause  falls. 

The  defendants  contended  —  First,  that  inasmuch  as  the 
widow  has  elected  to  take  under  the  statute,  and  not  under  the 
will,  the  validity  or  nonvalidity  of  the  will  should  be  determined 
without  reference  to  the  intended  provision  for  her;  second,  it 
is  contended  that  the  power  of  alienation  was  not,  by  the  terms 
of  the  will,  sus[)ended,  during  the  life  of  the  widow  ;  and,  third, 
that  by  the  proper  construction  of  the  fifth  clause,  in  connection 
with  the  third  and  fourth  clauses,  of  the  will,  the  power  of  alien- 
ation is  not  suspended,'  as  to  any  portion  of  the  estate  which 
vested  after  the  death  of  the  widow,  for  a  longer  period  than 
two  lives  in  being. 

We  think,  if  the  power  of  alienation  was  not  suspended 
during  the  life  of  the  widow,  the  case  presents  no  very  serious 
difficulty.  It  appears  to  be  conceded  by  counsel  who  seek  to 
maintain  the  validit}'  of  the  will  and  its  provisions  that  the  fifth 
clause  restrains  alienation  for  the  period  of  two  lives  in  being. 
The  construction  of  the  will  for  which  they  contend  is  that, 
under  the  provisions  of  the  third  clause,  the  estate  is  to  be 
divided  into  five  equal  shares,  that  two  of  the  shares  —  those 
devised  to  Frank  and  Lizzie  —  vest  at  once;  that,  by  the  terms  of 
the  fourth  clause,  certain  advancements  are  to  be  taken  out  of  the 
shares  of  Edgar  S.  and  Arch.  II.,  and  the  remainder  is,  in  each 
instance,  as  in  the  case  of  the  one-fifth  instance  of  Herbert  L., 
to  be  held  in  trust  by  the  executors  for  the  respective  legatees 
named  their  wives  and  children  ;  and  that  upon  the  decease  of 
Edgar  S.,  and  his  wife  Eliza,  the  one-fifth  less  the  deducted  ad- 
vancements, becomes  the  property  of  their  children  ;  and  so  in 
the  case  of  Arch.  H.  and  Herbert  L.  We  think  this  contention 
is  sound,  so  far  as  it  relates  to  the  third  and  fifth  clauses,  if  it 


RULE    OF   PERPETUITY.  421 

be  held  that  there  was  no  restraint  or  alienation  during:  the  life 
of  the  widow.  It  was  very  plainly  the  purpose  of  the  testator 
to  divide  his  estate  into  five  equal  parts,  and  we  think  it  very 
clear  that  it  was  not  the  intention  to  provide  by  the  fifth  clause 
that  the  three  parts  which  had  been  set  apart  by  the  third  clause 
of  the  will  to  Edgar  S.,  Arch.  H.,  and  Herbert  L.  should  be  held 
in  trust  for  the  common  use  of  the  sons,  their  wives  and  chil- 
dren. But  it  is  suggested  that,  in  this  view,  as  Herbert  L. 
was  unmarried  at  the  time  the  will  took  effect,  the  will  should  be 
construed  to  relate  to  any  wife  whom  he  might  in  the  future 
marry;  and,  so  construed,  it  would  not  vest  in  the  children  or 
heirs  until  after  the  expiration  of  two  lives  in  being.  We  think 
the  will  not  open  to  this  construction,  but  that  it  was  intended 
to  mean  any  wife  of  Herbert  L.  living  at  the  time  of  the  de- 
cease of  the  testator.  Van  Brunt  v.  Van  Brunt,  111  N.  Y.  178, 
19  N.  E.  60.  The  will  should  not  be  given  a  construction  for 
the  purpose  of  defeating  the  intention  of  the  testator,  which 
would  bring  within  its  purview  one  who  should  in  the  future 
become  the  wife  of  one  of  the  legatees. 

The  important  question,  then,  as  it  appears  to  be  conceded, 
is  whether  the  power  of  alienation  was  suspended  during  the 
life  of  the  widow.  If  the  contention  of  defendants'  counsel,  that 
the  election  of  the  widow  to  take  under  the  statute  calls  for  a 
construction  of  the  will  as  it  would  have  read  without  any 
attempt  to  make  provision  for  her,  be  allowed,  this,  with  what 
we  have  above  determined,  would  be  an  end  of  the  case.  A 
statement  is  found  in  the  case  of  Bailey  v.  Bailey,  97  N.  Y.  470, 
sustaining  the  contention  of  defendant's  counsel.  But  in  that 
case  it  had  been  determined  in  the  opinion  that  the  bequest  of 
the  widow  was  of  a  life  estate  in  the  property,  which  she  had 
the  right  to  sell  if  she  chose  ;  so  that  the  statement  aflSrmingthe 
doctrine  here  contended  for  was  dictum.  We  cannot  accept 
this  as  a  correct  statement  of  law.  The  will  must,  it  seems 
to  us,  be  construed  as  made.  It  will  not  do  to  say  that 
provisions  which  are  incorporated  in  a  will,  and  which  are 
not  valid  when  made  and  when  the  will  takes  effect,  can 
thereafter  be  made  valid  by  the  election  of  the  widow.  This 
would,  in  effect,  empower  the  widow  to  execute  a  will  by 
validating  what  was  previously  no  will.  Counsel  also  cite, 
as  sustaining  this  contention.  In  re  Woodburn's  Estate  (Pa. 
Sup.),  25  Atl.  145;  Small  v.  Marburg  (Md.),  Id.  920  ;  and  Tracy 
V.  Mnrry,  44  Mich.  109;  6  N.  W.  224.  In  the  cases  of  In  re 
Woodburn's  Estate  and  Small  v.  Marburg  the  question  be^^re 
the  court  related  to  the  effect  of  the  election  of  the  widow  to 
take  under  the  statute  upon  the  distribution  to  be  made  of  the 


422  EXECUTORY    DEVISES. 

estate.  Neither  case  deals  with  the  question  of  whether  the 
widow  can,  by  declining  to  take  under  the  will,  make  that  valid 
which  was  before  invalid,  nor  was  any  such  question  before  the 
court.  In  Tracy  v.  Murray  the  widow  renounced  her  right  to 
take  under  the  statute,  and  elected  to  take  under  the  will.  Tlie 
court  say :  "  Acco[)ting  as  correct  the  doctrine  of  those  cases 
which  hold  that  the  widow  becomes  a  purchaser  of  the  legacy  by 
releasing  her  dower,  the  contract  is  not  a  completed  one  until 
her  acceptance  of  the  provisions  of  the  will  after  her  husband's 
decease.  Had  he  purchased  from  his  wife  her  dower,  and  given 
her  his  note  therefor,  upon  his  death  such  obligation,  if  not  paid, 
would  simjdy  become  a  claim  against  the  estate,  and  take  its 
place,  when  proven  against  the  estate,  with  the  other  allowed 
claims.  The  husband  during  his  lifetime,  wishing  to  make 
arrangements  to  have  his  wife  release  her  dower  interest  in  the 
lands  of  which  he  should  die  seised,  makes  an  offer  therefor 
which  is  not  to  be  submitted  to  her  for  acceptance  until  after 
his  decease."  This  case,  it  will  be  seen,  ))resented  no  question 
of  validating  invalid  provisions  of  the  will,  but  dealt  with  the 
rights  of  the  widow  as  they  existed  under  the  will  as  made  by 
the  deceased ;  and  the  case  certainly  contains  no  intimation 
which  sustains  the  contention  here  made. 

Were  these  taxes  and  annuity  a  charge  upon  the  estate  in 
such  a  sense  as  to  create  a  trust,  and  suspend  the  power  of 
alienation?  It  is  settled  that  no  ex[)ress  words  creating  a  trust 
are  requisite,  if  the  intent  to  devote  the  estate  to  a  particular 
purpose  is  apparent  from  the  terms  of  the  will.  Where  a  duty 
is  imposed  upon  the  executor  which  makes  it  necessary  for  him 
to  retain  the  possession,  continually,  of  realty,  he  will  take  an 
interest  adequate  to  enable  him  to  perform  this  duty  ;  and  an 
alienation  which  cuts  off  that  right  is,  by  implication,  prohibited. 
Perrv  Trusts,  §§  121,  213,  and  cases  cited;  Cummings  v. 
Core'y,  58  Mich.  494;  25  N.  W.  481;  Vail  v.  Vail,  7  Barb.  226. 
And  where  there  is  a  provision  in  the  will  that  certain  debts  and 
charges  are  to  be  paid,  and  the  residue  of  the  estate  not  thus 
expended  is  then  divided,  the  particular  debts,  legacies,  and 
charges  will  be  considered  a  charge  against  the  estate,  loal  and 
personal.  See  a  discussion  of  this  rule  in  2  Jarra.  Wills,  p. 
n4ll  et  seq.;  Greville  v.  Browne,  7  H.  L.  Cas.  689  ;  Gainsford 
V.  Dunn,  L.  R.  17  Eq.  405  ;  Lafferty  v.  Bank,  76  Mich.  35;  43 
N.  W.  34.  It  will  be  noticed  in  the  present  case  that  the  will, 
after  bequeathing  t  he  homestead,  makes  the  taxes  and  repairs  upon 
the  homestead  payable  .from  the  estate  of  the  testator.  It  also 
provides  for  an  annuity  of  $1,500  per  annum,  to  be  paid  by  the 
executors  during  the  natural  life  of  the  widow,  and  then  be- 


RULE    OF    PERPETUITY ACCUMULATIONS    OF    PROFITS.       423 

queaths  all  the  rest,  residue,  and  remainder  of  all  the  goods, 
chattels,  real  and  personal  estate,  to  the  five  children  named. 
We  think  the  intention  is  clearly  manifested  to  make  the  entire 
estate,  real  and  personal,  subject  to  these  charges,  and  the  exec- 
utors may  devote  the  income  of  the  estate,  both  real  and  per- 
sonal, to  that  purpose,  and  are  required  to  do  so  if  necessity 
therefor  exists.  This  attempted  restraint  on  alienation  must  be 
held  void. 

The  question  is  raised  as  to  whether  the  will  is  void  in  toto. 
We  think  not.  Certain  duties  are  imposed  upon  the  executors 
which  might,  notwithstanding  the  failure  of  the  limitation  in  the 
fifth  clause,  be  performed,  and  the  provisions  charging  against 
the  shares  of  Edgar  S.  and  Arch.  H.  the  amount  of  certain  ad- 
vancements should  be  sustained.  As  the  widow  has  elected  to 
take  under  the  statute,  it  is  not  material  to  determine  whether, 
upon  the  failure  of  the  limitation  in  the  fifth  cl-ause,  the  children 
would  take  an  absolute  fee  under  the  third  clause,  as  their  inter- 
est would  be  the  same  whether  they  take  as  heirs  at  law  or  by 
the  terms  of  the  will.  A  decree  will  be  entered  in  accordance 
with  these  views.  The  costs  will  be  paid  out  of  the  estate.  The 
other  justices  concurred. 


Bule  of  Perpetuity  —  Accumulations  of  Profits. 

Hale  V.  Hale,  125  111.  399;   17  N.  E.  470;  see  Hale  v.  Hale,  146  HI.  227. 

Scott,  J,  The  bill  in  this  case  is  for  partition  of  the  real 
estate  of  which  Ezekiel  J.  M.  Hale  died  seised,  and  which  is 
situated  in  the  county  of  Cook,  in  this  State,  and  was  brought 
by  one  of  the  heirs  in  the  superior  court  against  the  widow,  the 
executors,  and  the  other  heirs  of  decedent.  Concerning  the 
facts  out  of  which  the  litigation  arises  no  controversy  exists. 
Prior  to  his  death  the  common  ancestor  of  the  heirs  clairainsc 
his  estate  in  Cook  County  as  intestate  property,  resided  at  Hav- 
erhill, in  the  State  of  Massachusetts.  At  the  time  of  his  death 
he  owned  a  large  estate  in  Massachusetts,  consisting  of  both  real 
and  personal  property,  all  of  which  it  is  conceded  was  disposed 
of  by  his  will,  which  was,  after  his  death,  admitted  to  probate  in 
that  State,  and  which  is  conceded  by  all  parties  interested  to  be 
valid  under  the  laws  of  Massachusetts.  The  testator  also  left  a 
large  amount  of  property  situated  in  the  State  of  New  York, 
and  the  property  involved  in  this  litigation  in  Illinois.  The 
larger  portion  of  the  estate  seems  to  have  been  in  Massachusetts, 
where  the  testator  had  resided  and  where  his  will  was  admitted 
to  probate.     It  seems  the  testator  gave  various  legacies  and  de- 


424  EXECUTOIIY  DEVISES. 

vises,  and  provided  in  difforcDt  clauses  of  his  will  for  life 
annuities,  lo  a  number  of  })c'rsons  —  perhaps  12  in  all — and 
for  other  annuities,  payable  at  stated  periods,  until  the  final 
division  of  the  residue  of  his  property  under  the  provisions  of 
his  will.  It  is  understood,  and  perhaps  admitted,  tljat  there  is 
sufficient  estate  in  Massachusetts  out  of  which  to  pay  all  leg- 
acies, devises,  and  annuities  provided  for  or  declared  in  the 
will.  It  is  not  claimed  that  any  of  the  property  belonging  to 
the  estate  situated  either  in  New  York  or  this  Slate  will  be 
wanted  for  the  payment  of  either  legacies,  devises,  or  annuities 
under  the  will.  The  bill  in  this  CMse  alleges  the  will  of  Ezekiel 
J.  M.  Hale,  deceased,  was  admitted  to  probate  in  Massachusetts, 
where  he  died,  no  one  objecting;  which  is  an  admission  it  was 
valid,  and  disposed  of  all  the  property  belonging  to  the  estate 
in  that  State.  But  the  bill  is  framed  on  the  theory  it  was  not 
the  intention  of  the  testator  to  devise  the  real  estate  now 
sought  to  be  partitioned  ;  that  the  scheme  of  his  will  was 
not  adapted  to  the  condition  of  his  estate  in  New  York  and  in 
Illinois,  and  was  not  intended  to  convey  the  same  ;  that  by  the 
laws  of  Illinois  and  New  York  the  devise  was  void,  and  had 
been  so  declared  by  the  courts  of  the  latter  State;  that  such 
testator  well  knew  that  the  provisions  of  his  will,  if  applied  to 
his  real  estate  in  New  York  and  Illinois,  made  the  same  illegal 
and  void  on  account  of  the  statutes  of  such  States  prohibiting 
perpetuities  ;  that  if  the  provisions  of  the  will  should  be  applied 
to  the  land  in  Illinois  or  New  York,  the  same  could  not  be 
alienated  for  many  years,  and  not  until  after  the  death  of  12 
life  annuitants;  that  the  property  in  Illinois  is  unproductive,  and 
cannot  be  made  productive;  that  the  taxation  upon  it  is  large, 
and  that  the  interest  and  taxation  will  entirely  absorb  the  value 
of  said  real  estate,  so  as  to  render  it  a  total  loss  to  the  heirs, 
if  it  should  be  held  to  be  included  within  the  terms  of  the 
will,  and  hence  not  subject  to  division  except  in  accordance 
with  the  will.  It  is  alleged  the  property  situated  in  New  York 
belonging  to  the  estate  exceeds  in  value  $1,000,000,  and  that 
in  Illinois  is  now  estimated  to  be  of  the  value  of  $200,000.  The 
executors  answered  the  bill  as  they  were  required  to  do,  in  which 
they  admitted  most,  if  not  all,  of  the  formal  charges  in  the  bill, 
but  insisted  the  lands  sought  to  be  partitioned  passed  to  them 
under  the  residuary  clause  of  the  will  of  the  testator;  and  on 
filing  their  answer,  they  filed  a  cross-bill,  in  which  they  claimed 
to  have  the  power  under  the  will  to  sell  such  real  estate, 
and  asked  the  court  to  so  decree.  The  respondents  in  their 
cross-bill  make  the  same  allegation  as  is  contained  in  the  original 
bill;   that,  unless  the  property  described  in  the  bill  can  be  sold, 


RULE   OF    PERPETUITY  —  ACCUMULATIONS    OF   PROFITS.         425 

it  will  be  absorbed  by  taxes  and  assessments  and  other  expenses 
before  the  time  for  distribution  would  arrive  under  the  provis- 
ions of  the  will.  The  su})erior  court,  at  the  hearing  of  the 
cause,  dismissed  tiie  cross-bill  of  respondents,  and  found  that 
the  property  dcsciibed  in  the  original  bill  was  intestate  prop- 
erty, and  decreed  a  partition  of  the  same,  as  it  was  asked  to  do. 
That  decision  is  assigned  for  error. 

The  residuary  clause  of  the  will  out  of  which  all  the  questions 
made  on  this  record  arise  is  as  follows:  "  Tiventy -second.  As 
to  the  residue  and  remainder  of  all  my  estate,  both  real  and  per- 
sonal not  herein  otherwise  disposed  of,  it  is  my  will  that  the 
same  be  and  remain  in  the  care  and  control  of  my  said  executrix 
and  executors  and  trustees,  and  their  successors  well  and  safely 
invested,  until  the  decease  of  the  last  survivor  of  the  life  an- 
nuitants named  in  my  foregoing  will;  and  that  then  the  said 
residue  and  remainder,  with  all  the  accumulated  interest  thereof, 
shall  be  divided  equally  among  my  grandchildren  ^jer  5^rr/>es,  to 
hold  to  such  grandchildren  so  distributed,  and  to  theu-  heirs, 
executors,  administrators,  and  assigns,  forever."  Most  of  the 
other  clauses  of  the  will  contain  provisions  for  legacies,  bequests, 
devises,  and  annuities  to  certain  persons,  and  others  contain 
specific  directions  as  to  what  disposition  shall  be  made  of  certain 
property  ;  and  beyond  giving  an  outline  of  the  general  scope  of 
the  will,  and  the  intention  of  the  testator  as  to  the  manaeement 
of  his  estate  by  the  executors  and  trustees,  they  contain  nothing 
that  is  important  in  connection  with  the  present  discussion,  and 
their  contents  need  not  be  stated  other  than  in  a  general  way. 

Two  principal  questions  are  made  by  the  original  and  cross 
bills:  (1)  Whether  the  lands  involved  were  devised  by  this 
clause  of  the  will,  or  whether  the  same  can  be  treated  as  intes- 
tate property,  as  not  being  embraced  in  the  will;  and,  (2)  if  it 
shall  be  held  the  lands  were  devised,  is  any  power  given  the 
executors  and  trustees,  either  expressly  or  by  implication,  by  this 
or  any  other  clause  of  the  will,  to  sell  these  lands  at  any  time 
within  their  discretion?  It  will  be  found  most  convenient  to 
consider  these  questions  in  the  inverse  order  in  which  they  are 
stated,  which  will  be  done  briefly. 

There  is  and  can  be  no  pretense  that  any  express  power  is 
given  to  the  executors  and  trustees  to  sell  any  real  estate  situated 
in  New  York  or  in  Illinois  that  had  belonged  to  the  testator  by 
the  twenty-second  clause,  or  any  other  clause,  of  his  will;  and  if 
any  such  power  exists  in  them  it  must  arise  by  implication  from 
powers  conferred  or  duties  expressly  imposed  by  the  will  in  re- 
gard to  such  real  estate.  Power  is  expressly  conferred  upon  the 
executors  and   trustees  to  sell  certain  real  property,  as  iu  the 


420  EXECUTOUY    DKVISES. 

second  clause  of  the  will,  but  nothing  is  said  anywhere  in  the 
will  concerning  the  sale  of  the  real  properly  in  New  York  or 
Illinois.  It  is  not  even  mentioned  by  any  description,  by  loca- 
tion or  otherwise.  If  it  is  devised  at  all,  it  is  by  the  twenty- 
second  or  residuary  clause  of  the  will,  and  not  otherwise.  But 
does  the  twenty-second  paragraph  of  the  will  confer  any  power 
upon  the  executors  and  trustees  to  sell  real  estate  situated  in 
New  York  or  Illinois,  even  by  implication?  It  is  thought  it 
does  not.  There  can  be  no  doubt  of  the  correctness  of  the  rule 
stated  by  counsel  that  authority  to  sell  and  convey  trust  property 
may  be  conferred  by  implication;  as  for  instance,  where  duties 
are  imposed  by  the  instrument  creating  the  trust  upon  the 
trustee,  which  he  cannot  perform  without  making  a  sale,  the  law 
will  imply  the  necessary  power  ;  otherwise  there  would  be  a  fail- 
ure of  the  objects  of  the  trust.  A  most  common  example 
is  where  there  has  been  an  assignment  for  the  payment  of 
debts,  if  no  express  power  is  given  to  sell  the  trust  property, 
the  duties  to  he  performed  by  the  trustee  will  necessarily 
create  the  power  of  sale,  for  it  is  obvious  in  no  other  way 
could  the  trustee  perform  the  duties  required  of  him  by 
the  instrument  creating  the  trust.  The  law  will  not  permit 
a  trust  to  fail  because  it  may  be  inartificially  declared  or  ex- 
pressed. This  is  undoubtedly  as  liberal  a  statement  of  the  im- 
plied powers  of  trustees  as  the  law  will  sanction.  Applying  this 
rule,  neither  the  twenty-second  clause,  nor  indeed  any  other 
provision,  contains  anything  that  indicates,  by  implication  or 
otherwise,  it  was  the  intention  of  the  testator  that  his  executors 
and  trustees  should  have  power  to  sell  and  convey  any  of  his 
real  property,  either  in  New  York  or  Illinois,  for  the  purpose  of 
converting  it  into  personalty.  The  words  supposed  to  manifest 
the  intention  of  the  testator  in  this  regard  are  "  that  the  same 
be  and  remain  in  the  care  and  control  of  my  said  executrix  and 
executors  and  trustees,  and  their  successors,  well  and  safely  in- 
vested, until  the  decease  of  the  last  survivor  of  the  life  annuitants 
named  in  the  foregoing  will."  It  is  said  the  words  "  well  and 
safely  "  mean  that  the  testator  gives  the  executors  and  trustees 
the  usual  authority  to  make  prudent  investments,  and  that  they 
mean  they  must  keep  the  property  invested.  The  vice  of  the 
Migument  on  this  branch  of  the  case  lies  in  detaching  these  words 
from  their  place  in  the  will,  and  giving  to  them  a  meaning  in- 
consistent with  the  context.  What  is  the  direction  given  by  the 
testator  concerning  this  property  in  New  York  and  Illinois?  It 
is  that  it  "  remain  in  the  care  and  control  "  of  the  executors  and 
trustees,  "  well  and  safely  invested."  That  is,  it  is  to  *'  remain," 
as  now,  "  well  and    safely    invested."     Any   other  would  be  a 


RULES   OF  PERPETUITY  —  ACCUMULATIONS    OF   PROFITS.     427 

strained  and  unnatural  construction  of  the  words  of  the  will. 
So  far  from  indicating  any  intention  on  the  part  of  the  testator 
that  his  executors  and  trustees  should  sell  his  lands  either  in 
New  York  or  Illinois,  the  words  used  indicate  unmistakably  it 
was  his  intention  and  purpose  they  should  "  remain  "  in  the  care 
and  control  of  his  executors  and  trustees,  '*  well  and  safely  in- 
vested," as  they  then  were,  until  the  time  ap))ointod  for  the 
distribution  of  the  residue  of  his  estate,  both  real  and  personal, 
should  arrive.  The  principle  running  through  all  the  cases  on 
this  subject,  so  far  as  the  writer  has  been  able  to  examine  the 
same,  is,  the  provisions  of  the  will  must  be  so  clearly  written  as 
to  leave  no  doubt  of  the  intention  of  the  testator  to  have  his 
real  estate  converted  into  personal  estate,  to  sustain  the  doctrine 
of  what  is  called  equitable  conversion.  That  intent  does  not 
appear  from  any  language  used  by  the  testator  in  this  case,  and 
it  is  not  perceived  his  trustees  have  any  implied  power  to  change 
the  real  property  devised  into  personal  estate  for  reinvestment 
or  otherwise.  This  precise  question  was  presented  to  the  Court 
of  Appeals  of  the  State  of  New  York  by  the  same  parties  to  this 
litigation;  and  in  an  action  brought  by  these  executors  and 
trustees  to  obtain  a  construction  of  certain  provisions  of  the  last 
will  and  testament  of  Ezekiel  J.  M.  Hale,  deceased,  that  court 
held,  after  most  elaborate  argument,  the  will,  while  valid  under 
the  laws  of  Massachusetts,  where  the  testator  died  and  where  his 
will  was  admitted  to  probate,  contained  no  express  direction  for 
the  conversion  of  the  real  estate  into  personalty,  or  for  the  sale 
of  the  real  estate.  Hobson  v.  Hale,  95  N.  Y.  588.  This  court 
is  entirely  satisfied  with  the  conclusion  reached  by  the  court  of 
appeals  in  that  case,  and  the  elaborate  discussion  there  given  to 
the  exact  question  involved  in  the  case  now  being  considered 
would  seem  to  relieve  this  court  from  the  necessity  of  any 
extended  consideration  of  the  question.  Under  this  view  of  the 
meaning  of  the  will,  the  relief  demanded  by  the  cross-bill,  that 
the  right  of  complainants  in  that  bill  to  sell  and  convey  the  lands 
involved  and  to  convert  the  same  into  money  may  be  established 
and  declared,  was  properly  denied. 

The  remaining  question  arises  on  the  original  bill,  and  is 
whether  the  land  situated  in  Illinois,  and  which  belonged  to  the 
estate  of  the  testator,  were  devised  by  the  residuary  clause  of 
the  will,  or  whether  the  same  can  be  treated  as  intestate  prop- 
erty, as  not  being  embraced  in  the  will.  There  is  evidence  tend- 
ing to  show  what  the  court  found  by  its  decree,  that  the  testator 
bought  these  lands  in  Cook  County  for  speculation,  and  that  had 
he  lived  it  is  probable  he  would  have  sold  the  same  on  receiving 
the  first  favorable  offer.     That  he  gave  expression  to  such  views 


428  EXECUTORY    DEVISES. 

18  proved  past  all  doubt,  but  whether  he  changed  his  mind  in 
that  regard  before  his  death  of  course  cannot  bo  known.  Con- 
struing the  will  in  the  light  of  the  surrounding  circumstances, 
as  the  law  rc'(|uires  shall  bo  done,  does  it  show  the  testator  in- 
tended to  omit  these  lauds  from  the  operation  of  his  will?  It  is 
seen  the  residuary  clause  of  the  will  is  as  broad  and  comprehen- 
sive as  it  can  well  be  expressed.  It  is,  "  As  to  the  residue  of 
all  ray  estate,  both  real  and  personal,  not  herein  otherwise  dis- 
posed of."  Primarily  the  words  "  all  of  my  estate  "  mc:iii  all  the 
estate  of  the  testator,  wherever  situated,  and  that  meaning  will 
always  be  given  to  them  unless  something  in  the  context  will  show 
a  more  restricted  construction  that  will  better  comport  with  the 
clear  intention  of  the  testator.  It  will  be  noticed  the  real  estate 
of  the  testator  situated  in  Nevv  York,  if  devised  at  all,  was 
devised  by  this  same  clause  of  the  will.  There  is  no  other  clause 
of  the  will  that  can  have  the  slightest  application  to  it.  If  the 
lands  in  Illinois  shall  be  held  not  to  have  been  devised  by  the 
twenty-second  clause  of  the  will,  the  conclusion  would  necessarily 
be  the  New  York  lauds  were  not  within  its  operation.  No  one 
has  ventured  to  suggest  the  testator  did  not  intend  by  this  clause 
of  his  will  to  devise  his  property  in  New  York.  When  the  case 
was  before  the  court  of  appeals  of  New  York,  that  court  seems 
to  have  held,  without  much  discussion,  the  property  in  that 
State  was  devised  by  the  will  ;  for  it  was  said :  "  While  it  should 
not  be  overlooked  that  the  testator  was  domiciled  in  the  State  of 
Massachusetts,  and  his  will  was  executed  there,  it  should  also  be 
borne  in  mind  that  by  his  will  he  devised  his  real  estate,  as  real 
estate,  situated  in  the  State  of  New  York."  Any  other  con- 
clusion would  be  too  improbable  to  be  adopted.  The  same  words 
in  the  will  that  are  held  to  constitute  a  devise  of  lands  in  New 
York  include  also  the  lands  in  Illinois.  Either  the  lands  in 
both  States  are  devised,  or  they  must  be  treated  as  interstate 
property  in  both  States.  It  is  incredible  that  a  testator  making 
a  will  that  by  its  terms,  when  understood  in  their  primary  sense, 
disposes  of  all  "his  estate,  both  real  and  personal"  omitted  there- 
from property  conceded  to  be  of  the  value  of  over  $1,200,000. 
Such  a  proposition  is  too  improbable  to  be  adopted,  unless  the 
testator  was  incapable  of  comprehending  what  he  was  doing. 
Plainly  the  residuary  clause  of  the  will  is  broad  enough  to  include 
all  the  property  of  the  testator,  no  matter  where  situated,  and 
there  is  nothing  in  either  of  the  attendant  circumstances,  or  in 
any  other  clause  of  the  will,  that  shows  any  intention  on  the  part 
of  the  testator  to  omit  any  property  in  Illinois  or  elsewhere  from 
its  operation.  When  this  case  was  before  the  court  of  appeals 
of  New  York  it  was  held  that  the  clause  of  the  twenty-second 


REMAINDER  IN  CHATTEL  REAL  —  RULE  IN  SHELLEY*S  CASE.     429 

paiMgraph  of  the  will  tb;it  |)ostponed  the  fiiiul  division  of  the 
estate  until  tlie  death  of  the  last  survivor  of  the  life  annuitants, 
so  far  as  it  applied  to  real  estate  in  that  State,  worked  an  unlaw- 
ful snp|)ression  of  the  powers  of  alienation,  and  was  for  that 
reason  void,  and  it  was  also  held  such  clause  was  repugnant  to 
the  provisions  of  the  statute  of  that  State  prohiI)iting  accumula- 
tions except  for  the  times  and  purposes  therein  permitted.  No 
such  objection  lies  to  that  provision  of  the  will  in  this  State.  A 
perpetuity  in  this  State  i>  defined  to  be  a  IJmitation  taking  the 
subject  thereof  out  of  commerce  for  a  longer  period  of  time  than 
a  life  or  lives  in  being  and  21  years  beyond.  Here  the  right  of 
alienation  is  not  suspended  for  any  period  beyond  the  lives  of 
certain  persons  in  being,  and  hence  this  provision  of  the  will  is  not 
repugnant  to  any  rule  of  law  in  this  State  inhibiting  perpetuities. 
But  it  is  said  a  construction  that  would  postpone  the  aliena- 
tion of  this  property  for  more  than  fifty  years  is  opposed  to 
public  policy.  The  limitation  fixed  is  to  terminate  at  the  death 
of  certain  life  annuitants,  and  of  course  when  that  contingency 
will  happen  is  a  matter  of  the  merest  conjecture.  It  might  occur 
within  5,  10,  20,  40,  or  GO  years.  Of  course  the  time  is  indefinite, 
and  all  that  can  be  known  concerning  it  with  any  degree  of  cer- 
titude is  that  it  is  sure  to  happen  sooner  or  later.  The  time  for 
which  the  executors  and  trustees  are  to  hold  the  residue  of  the 
estate,  for  which  there  might  be  a  suspension  of  the  right  of 
alienation  of  the  property  \n  contraversy,  is  limited  to  the 
death  of  the  last  survivor  of  the  life  annuitants,  and  it  is  not 
perceived  that  in  that  respect  it  contrnvenes  any  public 
policy  existing  in  this  State.  The  decree  of  the  superior  court 
dismissing  the  cross-bill  will  be  affirmed,  and  the  decree  grant- 
ing the  relief  demanded  on  the  original  bill  will  be  reversed,  and 
the  cause  will  be  remanded,  with  direction  to  that  court  to 
dismiss  the  orierinal  bill  also. 


Remainder    in    Chattel    Real  —  Executory   Devise  —  Rule  in 

Shelley's    Case. 

Hughes  V.  Nicholas,  70  Md.  484;  17  A.  398. 

McSherry,  J.  The  single  question  involved  in  this  appeal  is 
what  estate  did  Jane  Shaw  take,  under  the  will  of  George  Ack- 
erman,  in  certain  leasehold  property?  It  is  insisted  by  the  ap- 
pellant that  she  took  an  absolute  interest  therein,  while  the 
appellee  contends  that  she  was  entitled  only  to  a  life-estate,  and 
that  upon  her  decease  the  remainder  passed  to  Christiana  Sny- 
der.    The  will   of  George   Ackerraan  must  determine  this  con- 


430  EXECUTORY  DEVISES. 

troversy.  It  bears  date  May  KJ,  1831,  and  was  admitted  to 
prol)ato  October  2<S,  1834.  The  only  clauses  which  have  any 
reference  to  the  question  before  us  are  in  the  following  words: 
**  And  to  my  adopted  child,  Jane  Shaw,  whom  I  have  raised 
from  infancy,  and  who  now  lives  with  me,  I  give  and  bequeath 
all  my  property,  consisting  of  houses  and  vacant  lots,  situate  on 
tlic  west  side  of  High  street,  between  York  and  Pitt  streets, 
in  the  city  of  Baltimore,  durmg  her  natural  life,  with  remainder 
over  to  the  heirs  of  her  body,  if  she  should  have  any,  but,  in  case 
she  should  die  without  such  heirs,  then  the  said  remainder  to 
my  cousin,  Christina  Snyder,  widow  as  aforesaid,  to  her  and  her 
heirs  forever.  And  I  give  all  the  residue  of  my  property,  of 
whatsoever  name  or  nature,  to  the  said  Jane  Shaw,  without  limita- 
tion or  restriction,"  etc.  It  is  conceded  that  the  property  re- 
ferred to  in  the  first  of  the  two  clauses  quoted  was  leasehold 
property.  Jane  Shaw  married  William  Campbell.  She  died  in 
1886  without  ever  having  had  issue.  She  left  a  last  will  and 
testament,  whereby,  after  making  small  bequests  to  other  per- 
sons, she  gave  the  residuum  of  her  estate  to  John  W.  Hughes,  a 
grandson  of  her  deceased  husband,  and  she  appointed  him  exec- 
utor. He  is  the  appellant  in  this  case.  Christiana  Snyder  also 
died,  leaving  a  will  by  which  she  gave  the  residuum  of  her  estate 
to  her  grandchildren.  The  appellee  is  administrator  d.  b.  n.  c. 
t.  a.  of  her  estate. 

It  has  been  argued  that  the  intention  of  George  Ackerman, 
apparent  on  the  face  of  the  will,  was  to  give  Jane  Shaw  merely 
a  life-estate  in  the  leasehold  property,  and  that  this  intention 
must  control  the  constrtiction  to  be  placed  on  the  language 
used  in  making  the  bequest  of  tiiat  property  to  her.  It  is 
undoubtedly  true  that  a  testator's  intention,  when  legally  mani- 
fested, will  be  given  effect  to,  unless  it  violates  some  fixed 
principle  of  law,  or  would,  if  gratified,  break  down  some  settled 
rule  of  property,  or  unless  it  be  defeated  by  the  use  of  techni- 
cal words  whose  meaning,  v^^hen  they  are  found  in  wills,  is  in- 
flexible and  unvarying.  For  instance,  no  matter  how  clear  may 
be  the  intention  to  create  a  perpetuity,  it  cannot  be  gratified, 
because  forl)idden  by  law  ;  and  even  though  the  intention  to 
give  but  a  life-estate  may  be  perfectly  evident,  yet  if,  in  at- 
tempting to  create  it,  words  have  been  employed  which  have  in- 
variably been  held  to  carry  the  fee,  the  fee,  and  not  a  mere 
life-estate,  will  pass.  There  is  perhaps  no  rule  of  property 
more  deeply  rooted  in  the  jurisprudence  of  this  State  than  that 
which  is  known  as  the  '*  rule  in  Shelley's  Case."  It  is  a  rule  of 
tenure  which  is  not  onlj  independent  of,  but  generally  operates 
to  subvert,  the  intentioB     ?,iad  so  firmly  is  it,  with  its  qualifica- 


REMAINDER  IN  CHATTEL  REAL RULE  IN  SHELLEY's  CASE.      431 

tions,  established  here,  that,  as  said  by  this  court  in  Shrevo  v. 
Shreve,  43  Mil.  394,  "  nothing  but  an  act  of  the  leofishiture  can 
strike  it  out  of  our  system  of  real  law."  The  detinition  of  the 
rule  given  by  Mr.  Preston  (1  Prest.  Est.  2(i3),  adopted  with 
slight  modifications  by  Chancellor  Kent  (4  Kent  Comra.  215), 
and  quoted  with  approval  in  Ware  v.  Richardson,  3  Md.  544,  is 
so  familiar  that  it  need  not  be  repeated  in  this  opinion. 

If  the  subject  of  the  gift  to  Jane  Shaw  had  been  real  estate, 
she  would  have  taken,  under  the  rule,  an  estate  in  fee-tail,  which 
by  the  operation  of  our  law  of  descents  would  have  been  con- 
verted into  an  estate  in  fee-simple,  notwithstanding  the  most 
positive  and  unequivocal  declaration  that  she  should  take  only 
an  estate  for  life.  But  it  is  supposed  a  different  result  must 
follow  in  this  case  because  the  gift  relates  to  personal  property. 
In  support  of  this  position,  our  attention  has  been  called  to  the 
cases  which  hold  that  in  respect  to  personal  estate  attention  is 
paid  to  any  circumstance  that  seems  to  afford  ground  for 
construing  a  limitation  after  dying  without  heirs  or  without 
issue  to  mean  a  dying  without  heirs  or  issue  living  at  the  death 
of  the  party,  in  order  to  support  a  bequest  over,  though  as  to 
real  estate  the  construction  is  generally  otherwise.  Walla  v. 
Woodland,  32  Md.  104;  Gable  v.  Eliender,  53  Md.  311,  But 
the  principle  which  strikes  down  as  void,  because  too  remote,  a 
limitation  in  remainder  after  an  indefinite  failure  of  issue,  is  not 
the  one  upon  which  the  rule  in  Shelley's  Case  is  founded,  nor 
upon  which  the  decision  of  the  case  before  us  depends.  If  the 
rule  in  Shelley's  Case  is  applicable  to  leasehold  estates  as  well 
as  to  a  freehold,  the  case  is  entirely  free  from  difficulty.  In 
Butterfieid  v.  Butterfield,  1  Ves.  Sr.  154,  the  testator  directed 
that  £400  should  be  put  on  good  security  for  his  son  T.,  that 
he  might  have  the  interest  of  it  for  his  life,  and  for  the  lawful 
heirs  of  his  body,  and  if  it  should  so  happen  that  he  should 
die  without  heirs  of  his  body,  it  should  go  to  his  youngest 
son  B.,  Lord  Hardwicke  held  that  his  son  T.  should  take  the 
whole  absolute  interest.  In  Garth  v.  Baldwin,  2  Ves.  Sr.  646, 
personal  property  was  limited  to  trustees  to  pay  the  profits 
to  Edward  Turner  Garth  for  life,  and  afterwards  to  pay  the  same 
to  the  heirs  of  his  body.  The  lord  chancellor  held  that  the  case 
was  reduced  to  this:  a  gift  of  personal  estate  to  one  for  life,  and 
the  heirs  of  his  body,  that  must  vest  the  property  in  him, 
whether  the  testator  intended  it  or  not.  In  Atkinson  v.  Hutch- 
inson, 3  P.  Wms.  259,  the  lord  chancellor  stated  that  if  a  term 
of  years  be  limited  to  A.  for  life,  remainder  to  the  heirs  of  his 
body,  A.  would  take  the  whole  interest.  In  Elton  v.  Eason,  19 
Ves.  78,  the  master  of  the  rolls  said:   "  It  is  clearly  settled  that 


432  EXECUTORY   DEVISES. 

a  bequest  of  personal  property  to  a  man  for  life,  and  afterwards 
to  the  heirs  of  his  body,  is  an  absolute  bequest  to  the  first  taker. 
Whatever  disposition  would  amount  to  an  estate-tail  in  land 
gives  the  whole  interest  in  personal  property,  which  is  incap!il)le 
of  being  entailed."  And  in  Home  v.  Lyeth,  4  Har.  &  J.  431, 
which,  though  not  a  decision  by  the  court  of  appeals,  has  been 
followed  and  approved  in  many  cases  by  this  court,  it  was  dis- 
tinctly determined  *'  that,  if  a  leasehold  estate  is  limited  to  one 
for  life,  the  remainder  to  the  heirs  of  his  body,  the  whole  inter- 
est vests  in  the  first  taker  and  the  words  '  for  life '  will  not  be 
suflSeient  to  restrict  his  interest  to  a  life-estate."  This  was 
recognized  in  Warner  v.  Spriggs,  62  Md.  14. 

It  would  seem,  then,  to  be  perfectly  clear  that  the  bequest 
to  Jane  Shaw  is,  by  analogy  at  least,  directly  within  the 
rule.  The  gift  is  of  a  leasehold  interest  to  Jane  Shaw  during 
her  natural  life,  with  remainder  over  to  the  heirs  of  her 
body,  if  she  should  have  any,  as  a  class  of  persons  to  take 
in  succession  from  generation  to  generation.  The  limitation 
to  the  heirs  entitled  her  to  the  absolute  interest,  which  was 
not  restricted  by  the  words  *'  if  she  should  have  any  heirs." 
The  second  clause  quoted  from  the  will  cannot  affect  this  com- 
clusion.  It  is  claimed  its  provisions  plainly  indicate  that  the 
testator  intended  to  give  Jane  Shaw  only  a  life-estate  under  the 
first  clause;  but,  even  if  this  should  be  conceded,  the  result 
would  not  be  changed,  because  no  matter  how  evident  the 
"intention  to  create  but  a  life  estate  may  be,  when  the  words 
actually  used  bring  the  gift  within  the  rule  the  intention  must 
give  way,  and  the  fixed  rule  must  be  followed.  Accordingly, 
Hughes,  who  claims  under  the  will  of  Jane  Shaw,  is  entitled  to 
the  estate,  and  the  funds  brought  into  court,  being  the  rent  due 
by  the  lessee  of  the  term,  are  payable  to  the  appellant.  There 
was  error,  therefore,  in  the  decree  below,  which  denied  the 
appellant's  right  to  these  funds,  and  it  must  be  reversed.  The 
cause  will  be  remanded,  that  a  decree  may  be  passed  in  con- 
formity with  this  opinion. 


POWERS   DISTINGUISHED   FROM   ESTATES.  433 

CHAPTER     XV. 

POWERS   OF   APPOINTMENT. 

Potter  V.  Couch,  Ul  U.  S.  296. 

Mut.  Life  Ins  Co  v.  Shipman,  119  N.  Y.  324;  24  N.  E.  177. 

Bower  v.  Chase,  94  U.  S.  812  (1876). 

Powers  Distinguished  from  Estates  —  Devise  to  Executors  to 

Sell. 

Potter  V.  Couch,  141  U.  S.  296. 

Appeals  from  the  circuit  court  of  the  United  States  for  the 
northern  district  of  Illinois. 

These  were  appeals  from  a  decree  in  equity  by  various  persons 
asserting  claims  to  the  real  estate  devised  by  Ira  Couch,  who 
died  January  28,  1857,  to  his  brother,  James,  and  to  his 
nephew,  Ira,  by  his  will  dated  November  12,  1855,  and  duly 
admitted  to  probate  March  21,  1857,  by  which  he  appointed 
his  wife,  Caroline  E.  Couch,  his  brother,  James  Couch,  and  his 
brother-in-law,  William  H.  Wood,  executors  and  trustees,  and 
devised  and  bequeathed  all  his  property,  real  and  personal,  to 
them  in  trust  for  the  term  of  20  years,  and  for  certain  uses  and 
purposes;  and  then  (after  payment  of  debts  and  legacies),  in 
equal  fourths,  to  his  wife,  to  his  daughter  and  her  children,  to 
his  brother,  James,  and  to  his  nephew,  Ira,  the  son  of  James, 
with  devises  over  in  case  of  alienation.  The  material  provisions 
of  the  will  are  copied  or  stated  in  the  margin  ;  and  so  much  of 
the  facts  as  is  necessary  to  the  understanding  of  the  questions 
of  law  decided  was  as  follows :  — 

It  was  contended  by  some  of  the  parties  that  the  real  estate 
devised  by  his  will  was  owned  jointly  by  the  testator  and  his 
brother,  James.  But  upon  the  whole  evidence  it  clearly  appeared 
that  although  James  lived  with  the  testator,  and  hel[)ed  him 
in  his  business,  they  were  not  partners,  and,  as  James  knew,  all 
the  real  estate  was  bought  and  paid  for  by  the  testator  out  of 
his  own  money,  and  the  deeds  were  taken  in  his  name.  The 
property  belonged  to  the  testator ;  and  James  had  no  title 
in  it,  legal  or  equitable,  except  under  the  will.  Caroline  E. 
Couch,  the  testator's  daughter,  was  married  January  28,  1867, 
to  George  B.  Johnson,  having  before  her  marriage,  and  by  in- 
denture with  the  trustees  named  in  the  will,  appointed  them  to  be 
trustees  for  the  benefit  of  herself  and  her  children  under  the  twen- 
tieth clause  of  the  will.     Three  children  of  this  marriage  were 

38 


434  POWERS    OF    APPOINTMENT. 

born  before  1877.  The  testator  loft  real  estate  worth  about 
$1,000,000,  consisting  of  nine  lots  of  land  in  the  heart  of  the 
city  of  Chicago,  on  two  of  which  stood  the  Trcmont  House;  and 
left  personal  property  to  the  amount  of  $11,000;  and  owed 
debts  amounting  to  $112,000,  besides  unpaid  taxes  on  real  estate. 
The  trustees  under  the  will — Woods  collectingUhe  rents  and 
having  the  principal  management — improved  the  real  estate,  so 
as  to  produce  a  large  net  income,  until  the  great  fire  of  October, 
1871,  destroying  "all  the  buildings.  In  1872  and  1873  the 
trustees  erected  new  buildings  on  the  property  at  an  exi)ense  of 
$1,000,000,  of  which  they  borrowed  $750,000  on  mortgage  exe- 
cuted by  the  trustees,  as  well  as  by  the  widow,  James,  Ira,  and 
the  daughter,  and  her  husband,  individually,  of  all  the  nine  lots, 
payable  November  1,  1877,  with  yearly  interest  at  8  per  cent. 
On  the  completion  of  the  new  Tremont  House,  the  trustees 
beino'  unable  to  find  any  person,  not  interested  in  the  estate,  who 
would  undertake  to  pay  a  fair  rent  and  provide  the  necessary 
furniture,  a  lease  thereof  was  made  on  November  15,  1873,  by 
the  widow,  James  Couch,  and  William  H.  Wood,  as  trustees 
under  the  will  and  as  trustees  of  the  daughter,  and  by  the  widow, 
James,  Ira,  and  the  daughter  and  her  husband,  individually,  for 
10  years  to  James  Couch,  who  agreed  to  furnish  it  and  carry  it 
on  as  an  hotel,  and  to  pay  one-tenth  of  the  gross  amount  of  his 
receipts  therefrom  until  February  1,  1877,  to  the  widow  and 
Wood  as  joint  trustees  with  himself  under  the  will,  and  after 
that  date  to  pay  to  the  widow,  to  Ira,  and  to  the  daughter's 
trustees  three-fourths  of  such  tenth,  retaining  the  other  fourth 
himself.  James  Couch  carried  on  the  hotel  accordingly,  but 
unsuccessfully,  until  January  18,  1879,  when  his  lease  was  ter- 
minated, and  the  hotel  was  leased  to  another  person.  In 
December,  1876,  the  mortgagee  agreed  with  the  trustees 
named  in  the  will  to  extend  the  term  of  payment  of  the 
principal  of  the  mortgage  debt,  and  to  reduce  the  rate  of 
interest,  provided  the  whole  estate  should  continue  to  be 
managed  as  before,  and  Wood  should  remain  in  the  principal 
charge  and  control  thereof.  On  January  8,  1877,  James  Couch 
and  wife,  the  testator's  widow,  the  daughter  and  her  husband, 
and  Ira  and  his  wife,  in  their  individual  names,  and  the 
widow,  James  Couch,  and  William  H.  Wood,  as  trustees  of 
the  daughter,  executed  and  delivered  to  Wood,  a  power  of 
attorney,  containing  these  recitals:  "Whereas  by  the  will  of 
Ira  Couch,  deceased,  all  of  his  estate,  both  real  and  personal, 
was  devised  and  bequeathed  to  James  Couch,  Caroline  E. 
Couch,  and  William  H.  Wood,  in  trust,  for  the  period 
of   twenty   years   from   the    time    of   his    death,  which  period 


POWERS    DISTINGUISHED    FROM    ESTATES.  435 

will  expire  the  twenty-eighth  day  of  January,  1877,  and  upon 
the  termination  of  said  trust  to  the  said  James  Couch,  and 
Caroline  E.  Couch,  and  to  Ira  Couch,  son  of  said  James 
Couch,  and  Caroline  E.  Johnson,  daughter  of  said  testator  and 
now  the  wife  of  George  B.  Johnson,  one-fourth  thereof  to  each 
of  said  devisees;  "  "and  whereas,  the  said  Caroline  E.John- 
son did,  prior  to  her  marriage,  and  pursuant  to  the  provisions 
of  said  will,  by  her  deed  of  trust  appoint  the  said  James  Couch, 
Caroline  E.  Couch,  and  William  H.  Wood  trustees  of  all  her 
share  and  interest  in  said  estate;  and  whereas,  by  reason  of  the 
destruction  of  the  buildings  belonging  to  said  estate,  and  situate 
upon  said  lands,  by  fire,  the  said  trustees  under  said  will  have, 
as  such  trustees,  incurred  a  large  indebtedness  in  rebuilding  the 
same,  and  for  other  purposes  beneficial  to  said  estate,  and  which 
indebtedness  is  a  lien  or  incumbrance  thereon;  and  whereas,  it 
is  deemed  advantageous  to  the  undersigned,  devisees  as  afore- 
said, as  well  as  to  the  creditors  of  said  estate,  that  the  same 
should,  from  the  time  of  the  expiration  of  said  period  of  twenty 
years,  be  managed  as  a  whole  by  some  person  appointed  and 
agreed  upon  by  the  parties  interested,  to  the  end  that  sales  of 
said  estate,  or  parts  thereof,  may  be  made  from  time  to  time 
to  meet  the  said  indebtedness,  that  said  estate  may  in  the  mean- 
time be  kept  rented,  and  the  income  therefrom  applied  to  the 
payment  of  the  interest  on  indebtedness,  the  taxes,  premiums 
on  insurance,  and  the  expenses  for  repairs,  and  for  the  manage- 
ment of  the  estate."  This  power  accordingly  authorized  Wood, 
on  and  after  January  28,  1877,  to  enter  upon  and  take  posses- 
sion of  all  the  real  estate  devised;  to  rent  it,  and  to  collect  the 
rents  and  also  all  arrears  of  the  rent  under  leases  made  by  the 
trustees  under  the  will ;  to  pay  taxes  and  assessments,  and  the 
interests  and  principal  of  debts  against  the  estate,  and  all  ex- 
penses of  repairs,  preservation,  and  management  thereof,  and 
to  borrow  money  when  necessary  lor  these  purposes,  and  to  sell 
and  convey  the  whole  or  any  part  of  the  estate  whenever  and 
upon  such  terms  as  in  his  judgment  should  be  for  the  best  in- 
terest of  the  constituents;  and  provided  that  it  should  be  irre- 
vocable, except  that  after  January  28,  1880,  a  majority  of 
them,  or,  on  giving  six  months'  notice  in  writing,  any  one  of 
them,  might  "  revoke  this  power  of  attorney  and  annul  this 
agreement." 

By  reason  of  the  embarrassment  caused  by  the  financial  panic 
of  1873,  the  real  estate  depreciated  in  value,  so  that  it  was 
worth  less  than  the  sum  due  on  the  mortgage,  and  during  the 
years  1876,  1877,  and  1878  the  income  was  insufficient  to  pay 
the  interest  on  the  mortgage  debt,  taxes,  insurance,  and  expenses. 


436  POWERS    OF    APPOINTMENT. 

The  estate  afterwards  increased  in  value  until  1884,  when  the  in- 
come hiid  become  sufficient  to  pay  annnal  expenses  and  interest 
and  a  large  part  of  the  principal.  The  testator's  debts,  and  the 
legacies  given  by  the  twelfth  and  thirteenth  clauses  of  the  will, 
as  well  as  the  annuities  to  the  testator's  sister  and  to  his  mother- 
in-law  under  the  seventh  and  eighth  clauses,  were  all  duly  paid 
before  1877  ;  those  annuitants  having  died  before  that  time. 
The  annuities  to  his  widow  and  daughter  under  the  tenth 
clause  were  paid  until  the  fire  of  October,  1871,  but  were 
not  paid  in  full  afterwards;  and  his  l)rother,  James,  was  paid 
more  than  his  share  of  the  income  under  the  eleventh  clause. 
The  estate  was  never  divided  by  the  executors  among  the 
devisees  of  the  residue,  because  of  the  impossibility  of  making 
partition  of  the  most  valuable  lots,  or  of  selling  them,  except  at 
a  great  sacrifice.  On  February  15,  1879,  judgments  to  the 
amount  of  $6,000  were  recovered  against  James  Couch,  in  a 
court  of  the  State  of  Illinois,  on  debts  contracted  since  January 
28,  1877,  and  executions  thereon  were  forthwith  taken  out  and 
returned  unsatisfied.  On  February  24,  1879,  one  Sprague,  who 
recovered  two  of  those  judgments,  amounting  to  $1,097.85, 
brought  a  suit  in  equity  in  that  court,  upon  which  a  receiver  was 
appointed,  to  whom,  by  order  of  that  court,  on  March  29,  1879, 
James  Couch  executed  a  deed  of  all  property,  equitable  interests, 
things  in  action,  and  eff"ect  belonging  to  him.  In  1881  and 
1882,  James  Couch's  undivided  fourth  of  the  real  estate  devised 
was  levied  on  and  sold  by  the  sheriff  on  plwies  executions  issued 
on  Sprague's  judgments  at  law.  On  May  10,  1879,  one  Brown, 
as  trustee  for  Howard  Potter,  recovered  judgment  in  the  circuit 
court  of  the  United  States  against  James  Couch  for  $15,038.92 
on  a  debt  contracted  in  1874,  and  in  1881  caused  an  alias 
execution  thereon  to  be  levied  on  the  same  undivided 
fourth,  and  purchased  the  same  at  the  marshal's  sale 
on  execution.  On  February  9,  1881,  James  Couch  and 
Elizabeth  G.  Couch,  his  wife,  executed  a  deed  of  all 
their  interest  in  that  fourth  to  William  E.  Hale,  expressed 
to  be  for  a  nominal  consideration,  but  the  real  consideration  for 
which  was  a  contemporanous  agreement  between  the  wife  and 
Hale,  by  which  Hale  agreed  to  buy  up  the  judgments  existing 
against  James  Couch,  and  to  sell  the  interest  conveyed  to  him 
by  the  deed,  and,  after  reimbursing  himself  for  his  expenses,  to 
pay  one-half  of  the  proceeds  to  her,  and  hold  the  other  half  to 
his  own  use.  Hale  bought  up  the  judgments  recovered  February 
15,  1879,  being  about  one-third  of  the  judgments  against  Couch, 
as  well  as  the  title  under  the  sheriff's  sale  aforesaid ;  but  on 
November    16,   1882,    sold   them   again   to   Potter,  and   never 


POWERS    DISTINGUISHED    FROM    ESTATES.  437 

bought  up  any  of  Potter's  claims,  or  paid  anything  to  Elizabeth 
G.  Couch. 

Ira  Couch,  the  testator's  nephew,  came  of  age  January  9,  1869, 
and  never  had  any  children.  His  interest  in  the  estate  of  the  tes- 
tator was  conveyed  by  him,  being  insolvent,  on  January  29,  1877, 
to  one  Dupee,  as  a  trustee  for  his  creditors,  with  authority  to 
sell  at  private  sale;  by  Dupee,  on  November  26,  1881,  to  one 
Everett,  in  consideration  of  the  sum  $1,000  paid  by  Eliza- 
beth G.  Conch,  mother  of  Ira;  by  Everett,  on  November  28, 
1881,  to  her  ;  and  by  her,  on  February  28,  1889,  back  to  Ira. 
On  March  9,  1885,  Caroline  E.  Johnson,  the  testator's 
daughter,  conveyed  to  her  husband  all  right,  title,  and  in- 
terest she  might  or  could  have  in  real  estate  under  the 
nineteenth  clause  of  the  will.  On  July  5,  1885,  she 
died,  leaving  her  husband  and  three  children  surviving  her. 
On  July  14,  1884,  James  Couch,  Caroline  E.  Couch,  and  William 
H.  Wood,  being  the  executors  and  trustees,  and  the  first  two 
of  them  devisees  named  in  the  will,  filed  a  bill  in  equity  in  the 
State  court  to  obtain  a  construction  thereof,  to  which  Caroline 
E.  Johnson  and  her  husband  and  children,  Elizabeth  G.  Couch, 
Potter,  Hale,  Ira  Couch,  the  judgment  creditors  of  James  Couch, 
and  the  receiver  appointed  in  Sprague's  sit  in  equity,  were 
made  parties.  On  August  4,  1884,  Potter  filed  in  the  cir- 
cuit court  of  the  United  States  a  bill  for  partition  of  the  real 
estate  of  the  testator,  making  all  other  parties  interested  defend- 
ants. On  October  23,  1884,  the  bill  for  the  construction  of  the 
will,  and  on  May  15,  1885,  the  bill  of  Sprague,  were  removed 
into  that  court.  On  August  3,  1885,  these  three  causes  were 
consolidated  by  order  of  the  court;  and  on  November  18,  1887, 
after  the  various  parties  had  filed  answers  stating  their  claims,  it 
was  ordered  that  each  answer  might  be  taken  and  considered  as 
a  cross  bill. 

No  question  was  made  as  to  the  share  devised  to  the  wife  by  the 
second  clause,  or  as  to  the  share  devised  to  the  daughter  and  her 
children  by  the  third  and  twentieth  clauses  of  the  will.  The 
claims  to  the  various  parties  to  the  shares  devised  to  the  testa- 
tor's brother,  James,  by  the  fourth  clause,  and  to  the  testator's 
nephew,  Ira,  by  the  fifth  clause,  were  as  follows:  Potter  claimed 
the  share  of  James  under  the  judgments  and  the  sales  on  execu- 
tion against  him.  Hale  claimed  the  some  share  under 
the  deed  to  him  from  James  and  wife.  James  claimed  his 
share  under  the  fourth  clause  of  the  will.  Ira  claimed  his 
share  under  the  fifth  clause  ;  and  also  claimed  the  share  of  James, 
on  the  ground  that  by  reason  of  the  alienations  thereof  to  Pot- 
ter and    to  Hale,  the  devise  over  in  the  nineteenth  clause  to  his 


438  POWEua  ui-'  aimuim.mknt. 

children  took  cfTect.  Tlic  diiiighler's  Imsband  and  her  children, 
respectively,  claimed  the  .shares  of  both  James  and  Ira,  contend- 
in";  that,  hy  rea.son  of  the  alienalionn  thei-eof,  they  vested, 
under  the  ultimate  devise  over  in  the  nineteenth  clause,  in  the 
daughter  and  her  heirs  ;  the  husband  claiming  under  his  wife's 
deed  to  him,  and  the  children  clain)ing  under  the  twentieth  clause 
of  the  will  by  reason  of  her  death.  By  tiie  decree  it  was 
declared  that  the  devised  estate  vested,  at  the  expiration  of  20 
years,  from  the  testator's  death,  one-fourth  in  fee  to  the  widow, 
one-fourth  in  fee  in  James,  one-fourth  in  fee  in  Ira,  and  the 
remaining  fourth  in  the  daughter  for  life,  with  remainder  in  fee 
to  her  children;  and  the  claims  of  Potter,  of  Hale,  and  of  the 
daughter's  husband  and  children  to  the  shares  ot  James  and  Ira, 
and  of  Ira  to  the  share  of  James,  were  disallowed.  Potter,  Hale, 
the  daughter's  husband,  and  her  children,  respectively,  api)ealed 
from  the  disallowance  of  their  claims;  and  James  Conch  appealed 
from  so  much  of  the  decree  as  declared  that  legal  title  under  the 
residuary  devises  vested  at  the  expiration  of  20  years  from  the 
testator's  death.  The  five  appeals  were  submitted  together  on 
printed  briefs  and  arguments. 

Mr.  Justice  Gray,  after  stating  the  facts  as  above,  delivered 
the  opinion  of  the  court. 

The  matters  in  controversy  concern  those  shares  only  of  Ira 
Couch's  real  estate  which  he  devised  to  his  brother,  James,  and 
to  his  nephew,  Ira,  the  son  of  James. 

1.  In  order  to  ascertain  the  nature  and  the  time  of  vesting  of 
their  interests,  it  is  important,  in  the  first  place,  to  determine  the 
extent  and  duration  of  the  trust-estate  of  the  executors  and 
trustees  named  in  the  will,  bearing  in  mind  the  settled  rule  that 
whether  trustees  take  an  estate  in  fee  depends  upon  the  require- 
ment of  the  trust,  and  not  upon  the  insertion  of  words  of  inher- 
itance. Doe  V.  Cosidine,  6  Wall.  458;  Young  v.  Bradley,  101 
U.  S.  782;  Kirkland  v.  Cox,  94  111.  400.  In  the  first  clause  of 
the  will  the  testator  appoints  his  wife,  his  brother,  James,  and 
his  brother-in-law  Wood,  "  executors  and  trustees"  of  his  will, 
and  devises  and  bequeaths  to  them  all  his  estate,  real  and  per- 
sonal, "  for  the  term  of  twenty  years,  in  trust,  and  for  the  uses 
end  objects  and  purposes  hereinafter  mentioned  and  expressed, 
and  for  the  j)urpose  of  enabling  them  more  fully  to  carry  into 
effect  the  provisions  of  this  will,  and  for  no  other  use,  purpose, 
or  object;  "  authorizes  them  to  lease  his  real  estate  at  their 
discretion,  and  out  of  any  surplus  funds,  to  improve  his  real 
estate,  to  purchase  other  real  estate  to  be  held  upon  the  same 
trust,  and  to  lend  money  on  bond  and  mortgage;  but  in  order 
that  their   doings  may  not  create  any  obstacle  to  the  division  of 


POWERS    DISTINGUISHED    FROM    ESTATES.  439 

his  real  estate  at  the  end  of  the  20  years,  provides  that  they  shall 
not  make  leases,  or  lend  money  on  mortgage,  beyond  20  years, 
or  purchase  or  improve  by  building  after  16  years  from  his 
death  ;  and  he  also  authorizes  them  to  mortgage  real  estate  for 
the  purpose  of  rebuilding  in  case  of  destruction  by  the  elements. 
In  the  next  four  clauses  he  devises  and  bequeaths  to  his  widow, 
daughter,  brother,  and  nephew,  respectively,  "  after  the  expir- 
ation of  the  trust-estate  vested  in  my  executors  and  trustees  for 
the  terra  of  twenty  years  after  my  decease,"  one-fourth  part  of 
all  his  estate,  both  real  and  personal,  after  payment  of  debts  and 
legacies,  which  he  charges  upon  the  real  estate.  In  the  eleventh 
clause,  he  directs  his  executors  to  pay  to  his  brother  a  certain 
part  of  the  income  "  until  the  final  division  of  my  estate,  which 
shall  take  place  at  the  end  of  twenty  years  after  my  decease, 
and  not  sooner."  And  in  the  twenty-first  clause  ho  declares 
his  wish  that  Wood  shall  collect  the  rents  and  have  the 
general  care  and  supervision  of  the  affairs  of  the  estate 
during  the  same  period.  These  provisions,  had  the  testator 
said  nothing  more  upon  the  subject,  might  have  been  construed 
as  assuming  or  implying  that  the  trust-estate  was  to  termi- 
nate at  the  end  of  20  yoars  from  the  testator's  death,  without 
any  act  of  conveyance  on  the  part  of  the  trustees.  But  the  will 
contains  other  provisions  concerning  the  powers  and  duties  of 
the  trustees,  which  are  wholly  inconsistent  with  such  a  conclu- 
sion. 

The  sixteenth  clause  is  as  follows  :  "  I  will  and  direct  that  no 
part  of  my  estate,  neither  the  real  nor  the  personal,  shall  be 
sold,  mortgaged  (except  for  building),  or  in  any  manner  incum- 
bered until  the  end  of  twenty  years  from  and  after  my  decease, 
when  it  may  be  divided  or  sold  for  the  purpose  of  making  a  divis- 
ion between  my  devisees  as  herein  directed."  The  very  object 
of  this  clause  is  to  define  when  and  for  what  purposes  the  trus- 
tees may  mortgage  or  may  sell  the  real  estate.  Before  the  end 
of  20  years  it  is  neither  to  be  mortgaged  (except  for  building, 
as  allowed  in  the  first  clause)  nor  to  be  sold.  At  the  end  of  20 
years  all  authority  to  mortgage  it  is  to  cease,  but  "  it  may  be 
divided  or  sold  for  the  purpose  of  making  a  division  between  my 
devisees  as  herein  directed."  This  division  or  sale  (like  all  sales 
or  mortgages  spoken  of  in  this  clause)  is  evidently  one  to  be 
made  by  the  trustees  under  authority  derived  from  the  testator, 
and  while  the  legal  title  remains  in  them;  not  a  judicitil  division 
or  sale  for  the  pupose  of  partition  after  the  legal  title  has  passed 
to  the  residuary  devisees.  Again,  in  the  eighteenth  clause 
the  testator  directs  that,  in  the  event  of  any  of  the 
legatees  or  annuitants    being   alive    at    the    end    of   20  years 


440  rowEKS  OF  appointment. 

after  his  death,  tl)ere  shall  l)c  a  division  of  all  of  his  estate  at 
that  time,  "  anything  herein  contained  to  the  coutraiy  notwith- 
standing;" and  that  •' in  such  case  my  executors,  in  making 
division  of  the  said  estate,  shall  apportion  each  legacy  or  annuity 
on  the  estate  assigned  to  my  devisees,  who  are  hereby  charged 
with  the  payment  of  the  same  acctxrdingto  the  apportionment  of 
my  said  executors."  This  clause  puts  beyond  doubt  the  inten- 
tion of  the  testator,  not  only  that  the  division  of  his  estate,  and 
the  assignment  and  conveyance  of  the  several  shares  to  each 
devisee,  shall  be  made  by  his  executors,  but  that  the  question 
which  share  shall  be  charged  with  the  payment  of  any  legacy  or 
annuity  shall  depend  upon  the  act  of  the  executors  in  making 
the  division  among  the  devisees.  Although,  at  the  exi)irati()n  of 
20  years  from  the  testator's  death,  all  the  legacies  and  annuities 
to  others  than  the  residuary  devisees  had  in  fact  been  paid,  yet 
the  duty  still  remained  in  the  executors  and  trustees  to  make  a 
division,  by  sale  if  necessary.  Under  the  circumstances  of  this 
case,  it  was  impracticable  to  make  the  division,  either  by  the 
partition  of  the  lands  themselves,  or  by  selling  them  and  dis- 
tributing the  proceeds,  immediately  upon  the  expiration  of  the 
20  years;  and  until  a  division  was  made,  in  one  form  or  the 
other,  by  the  executors  and  trustees,  the  legal  title  must  remain 
in  them.  The  sale  and  conveyance  by  them,  whether  directly  to 
the  residuary  devisees,  or  to  the  third  persons  for  the  purpose  of 
paying  the  proceeds  to  those  devisees,  was  not  in  the  exercise  of 
a  power  over  an  estate  vested  in  other  persons,  but  was  for  the 
purpose  of  terminating  an  estate  vested  in  the  executors  and 
trustees  themselves,  by  conveying  it  to  others.  The  twentieth 
clause,  by  which  the  daughter's  share,  in  case  of  her  marriage, 
is  to  be  conveyed  at  the  expiration  of  the  twenty  years,  by  the 
trustees  named  in  the  will,  to  trustees  for  the  benefit  of  herself 
and  her  children  ;  and  the  twenty-second  clause,  by  which  the 
share  of  the  widow,  in  case  of  her  marrying  again,  is  to  be  held 
by  the  executors  and  trustees  in  trust  for  her,  —  are  also  worthy 
of  notice  in  this  connection,  although  they  might  not,  standing 
alone,  affect  the  time  of  vesting  of  the  legal  title  in  the  shares 
of  the  brother  and  the  nephew.  Wellford  v.  Snyder,  137  U.  S. 
521;  11  Sup.  Ct.  Rep.  183. 

There  can  be  no  doubt  that  all  the  powers  conferred,  and  all 
the  trusts  imposed,  were  annexed  to  the  office  of  executors,  and 
not  to  a  distinct  office  of  trustees.  And,  taking  the  whole  will 
together,  it  is  quite  clear  that  the  legal  title  of  the  executors  and 
trustees  did  not  absolutely  terminate  upon  the  expiration  of 
twenty  years  from  the  death  of  the  testator,  because  it  was  neces- 
sary for  the  purpose  of  enabling  them  to  execute  the  trusts,  and 


POWERS    DISTINGUISHED    FROM    ESTATES.  441 

to  carry  out  the  provisions  of  the  will,  that  the  legal  title  should 
be  aiul  continue  in  them  until  they  had,  by  sale  or  otherwise, 
settled  the  estate,  and  conveyed  to  the  devisees  severally  their 
shares  in  the  estate  or  its  proceeds.  The  testator  doubtless  in- 
tended that  after  the  expiration  of  the  twenty  years  the  estate 
should  cease  to  be  held  and  managed  by  his  executors  and  trus- 
tees as  a  whole,  and  should  be  divided  into  four  parts  to  be  held 
in  severalty  by  or  for  his  residuary  devisees.  But  he  intended, 
and  expressly  provided,  that  the  division  should  be  made  by  his 
executors  and  trustees  ;  and  therefore  their  trust  estate  could 
not  terminate  until  they  had  made  the  division  and  conveyed  the 
shares.  McArthur  v.  Scott,  1 13  U.  S.  340,  377  ;  5  Sup.  Ct.  Rep. 
652;  Kirkland  v.  Cox,  94  111.  400;  Perry  Trusts,  §§  305,  315, 
320.  Whether,  in  case  of  unreasonable  delay  on  their  part  to 
make  the  division,  a  court  of  equity  might  have  compelled  them 
to  do  so,  is  a  question  not  presented  by  this  record. 

The  decision  of  the  Supreme  Court  of  Illinois  in  Kirkland  v. 
Cox,  above  cited,  is  much  in  point.  In  that  case  the  testator 
devised  and  bequeathed  all  his  estate,  real  and  personal,  to  trus- 
tees, to  control  and  manage  it,  and  to  make  such  disposition  of 
it  as  should  in  their  judgment  increase  its  value  ;  to  pay  to  his 
daughter  such  installments  as  they  should  deem  sufficient  for  her 
support  untd  she  reached  the  age  of  35  years,  and  then  to  con- 
vey the  estate  to  her  in  fee;  authorizing  them,  however,  if  she 
should  be  then  married  to  a  man  whom  they  thought  unworthy, 
to  continue  to  hold  the  title  in  trust  during  his  life  ;  and  further 
providing  that,  if  she  died  without  issue,  the  whole  estate,  after 
paying  certain  legacies,  should  "  be  divided  equally  between  " 
three  charitable  corporations.  It  was  held  that  the  powers  con- 
ferred on  the  trustees  implied  a  power  to  sell  the  lands,  and 
convert  them  into  money  or  interest-bearing  securities  and, 
therefore,  that  the  trustees  took  and  held  the  title  in  fee-simple, 
notwithstanding  the  death  of  the  daughter  before  reaching  the 
age  of  35  years  ;  the  court  saying  :  "  The  power  implied  to  sell 
is  to  sell  the  whole  title,  and  to  this  essential  the  power  to  con- 
vey that  title,  requiring  as  a  condition  precedent,  a  fee-simple 
estate  in  the  trustees.  The  property  is  devised  to  the  trustees 
to  sell  and  convey  if  they  deem  it  advisable,  or  to  hold  and  con- 
trol until  it  is  to  be  transferred  as  directed  ;  and  in  the  contin- 
gency that  has  arisen  it  was  intended  that  it  should  be  the  duty 
of  the  trustees  to  make  the  equal  division  of  the  property  be- 
tween the  corporations  designated  and  convey  it  accordingly ;  for 
the  grant  to  these  corporations  is  in  severalty,  and  not  as  ten- 
ants in  common,  and  their  title  must  necessarily  rest  on  the  con- 
veyance of  the  trustees."     94  111.  415.     The  cases  cited  against 


442  rowEKS  oi'  aitoim'ment. 

this  conclusion  differ  widely  from  tlio  case  iit  bar.  The  two 
most  relied  on  were  Minors  v.  BiiUison,  L.  K.  1  App.  Cas.  42S, 
in  which  the  facts  weio  very  i)eculitir,  and  there  was  much  diver- 
sity of  opinion  amoui2j  the  judges  before  whom  it  was  succes- 
sively brou<^ht;  and  Manico  v.  Manice,  43  N.  Y.  303,  in  which 
the  construction  adopted  was  the  only  one  consistent  witli  the 
Validity  of  the  will  under  the  statutes  of  New  York. 

2.  From  this  view  of  the  nature  and  duration  of  the  estate  of 
the  trustees,  it  necessarily  follows  that  by  the  terms  of  the 
fourth  and  fifth  clauses  of  the  will,  devising  and  bequeathing  to 
the  testator's  brother  an<l  ne[)hew,  respectively,  "  after  the  ex- 
piration of  the  trust-estate  vested  in  my  executors  and  trustees," 
"one-fourth  part  of  all  my  estate,  both  real  and  personal" 
(after  the  payment  of  debts  and  legacies,  which  he  charged  upon 
the  real  estate),  no  legal  title  in  any  specific  part  of  the  estate, 
and  no  right  of  possession,  vested  in  either  of  them  until  the 
trustees  had  divided  the  estate,  and  conveyed  to  each  of  them 
one-fourth  of  the  estate,  or  of  the  proceeds  of  its  sale;  l)ut,  on 
well-settled  principles,  an  equitable  estate  in  fee  in  one-fourth  of 
the  residue  of  the  testator's  whole  property  vested  in  the  brother 
and  in  the  nephew,  respectively,  from  the  death  of  the  testator. 
Cropley  v.  Cooper,  19  Wall.  167;  McArthur  v.  Scott,  113  U.  S. 
340,  378,  380;  5  Sup.  Ct.  Rep.  652;  Phipps  v.  Ackers,  9  Clark 
&  F.  583;  Weston  v.  Weston,  125  Mass.  268;  Nicoll  v.  Scott, 
99  111.  529  ;  Scofield  V.  Olcott,  120  III.  362  ;  11  N.  E.  Rep.  351. 
To  the  suggestion  that  the  will  violated  the  rule  against  perpet- 
uities, which  prohibits  the  tying  up  of  properly  beyond  a  life  or 
lives  in  being  and  twenty-one  years  afterwards,  it  is  a  sufficient 
answer  that  after  twenty  years  from  the  death  of  the  testator, 
and  after  the  death  of  the  widow  and  daughter  (if  not  before), 
the  title,  legal  and  equitable,  in  the  whole  estate  woidd  be  vested 
in  [)ersons  capable  of  conveying  it.  Waldo  v.  Cummings,  45  III. 
421  ;  Lunt  v.  Lunt,  108  111.  307. 

3.  Nor  is  the  estate  of  the  residuary  devisees  affected  by  the 
nineteenth  clause  of  the  will,  which  is  in  these  words:  "  It  is 
my  will  that  my  trustees  aforesaid  shall  pay  the  several  gifts, 
legacies,  annuities  and  charges  herein  to  the  persons  named  in 
this  will,  and  that  no  creditors  or  assignees  or  purchasers  shall 
be  entitled  to  any  part  of  the  bounty  or  bounties  intended  to 
be  given  by  me  herein  for  the  personal  advantage  of  the  per- 
sons named ;  and  therefore  it  is  my  will  that,  if  either  of  the 
devisees  or  legatees  named  in  my  will  shall  in  any  way  or  man- 
ner cease  to  be  personally  entitled  to  the  legacy  or  devise  made 
by  me  for  his  or  her  benefit,  the  share  intended  for  such 
devisee  or  legatee  shall  go  to  his  or   her  children,  in  the  same 


POWERS    DISTINGUISHED    FROM    ESTATES.  443 

m.ii»ner  as  if  such  child  or  children  had  actually  inherited  the 
saaie  ;  and  in  the  event  of  such  person  or  persons  having  no 
children,  then  to  my  daughter  and  her  heirs."  The  devise  over 
in  this  cluuse  cannot,  indeed,  by  reason  of  the  words,  "gifts, 
legacies,  annuities,  and  charges,"  and  "  bounty  or  bounties," 
in  the  preamble,  be  confined  to  the  legacies  and  iinnuities  given 
l)y  the  testator  and  charged  on  his  real  estate,  by  clauses  6  to  13, 
inclusive,  and  by  clause  18.  So  to  hold  would  be  utterly  to  dis- 
regard the  comprehensive  and  decisive  words,  "  devisees  or  leg- 
atees," "  legacy  or  devisee,"  and  "  share  intended  for  such  de- 
visee or  legatee,"  by  which  the  testator  clearly  manifests  his 
intention  that  the  devise  over  shall  attach  to  the  shares  of  his 
real  estate  devised  to  his  widow,  daughter,  brother,  and  nephew, 
respectively,  by  clauses  2,  3,  4,  and  5,  except  so  far 
as  its  effect  upon  the  shares  of  the  daughter  and  the  widow 
may  be  modified  by  the  trust  created  for  their  benefit  by 
clauses  20  aud  22.  The  testat()r  having  declared  his  will  that 
the  devises  of  the  shares  shall  be  "  for  the  personal  advantage 
of"  the  devisees  and  that  "no  creditors  or  assignees  or  pur- 
chasers shall  be  entitled  to  any  part,"  and  having  directed 
the  devise  ov*)r  to  take  eff'ect  "  if  either  of  the  devisees  shall  in 
any  way  or  manner  cease  to  be  personally  entitled  to  the  devise 
made  for  his  benefit,"  the  devise  over  of  the  shares  of  the  brother 
and  the  nephew^,  if  valid,  would  take  effect  upon  any  alienation 
by  the  first  de^^isee,  whether  voluntary  or  involuntary,  by  sale 
and  conveyance,  by  levy  of  execution,  by  adjudication  of  bank- 
ruptcy, or  otherwise;  or,  at  least,  upon  any  such  alienation 
before  his  vested  equitable  estate  became  a  legal  estate  after  the 
expiration  ofthe  20  years.  But  the  right  of  alienation  is  an  inherent 
and  inseparable  quality  of  an  estate  in  fee-simple.  In  a  devise 
of  land  in  fee-siijiple,  therefore,  a  condition  against  all  alienation 
is  void,  because  repugnant  to  the  estate  devised.  Co.  Litt.,  § 
360  ;  Id.  2066,  224a  ;  4  Kent.  Comm.  131;  McDonough  v.  Mur- 
doch, 15  How.  367,  373,  375,  412.  For  the  same  reason  a  lim- 
itation over,  in  cate  the  first  devisee  shall  aliene,  is  equally  void, 
whether  the  estate  be  legal  or  equitable.  Howard  v.  Carusi,  109 
U.  S.  725  ;  3  Sup.  Ct.Rep.  575;  Ware  v.  Cann,  10  Barn  &  C. 
433  ;  Shaw  v.  Ford,  7  Ch.  Div.  669  ;  In  re  Dugdale,  38  Ch.  Div. 
176;  Corbeltv.  Corbett,  13  Prob.  Div.  136  ;  Steib  v.  Whitehead, 
111  111.  247,  251;  Kelley  v.  Meins,  135  Mass.  231,  and  cases 
there  cited.  And  on  i)rinciple  and  according  to  the  weight  of 
authority  (notwithstanding  opposing  dicta  Cowell  v.  Springs 
Co.,  100  U.  S.  55,  57,  and  in  other  books),  a  restriction 
whether  by  way  of  condition  or  devise  over,  on  any  and 
all  alienation,  although    for    a    limited    time,  of   an    estate   in 


444  POWEltS    OF    APPOINTMENT. 

fee,  is  likewise  void,  as  repugnant  to  the  estate  devised  to  the  first 
taker,  by  depriving  him  during  that  time  of  the  inherent  power 
of  alienation.  Roosevelt  v.  Thurman,  1  Johns.  Ch.  220  ;  Mandle- 
banm  v.  McDonell,  29  Mich.  78;  Anderson  v.  Cary,  3(5  Ohio  St. 
50(5;  Twitty  v.  Camp,  Phil.  Eq.  61  ;  In  re  Kosher,  2(5  Ch.  Div. 
801. 

The  cases  most  relied  on,  as  tending  to  support  a  different 
conclusion,  are  two  decisions  of  this  court,  not  upon  devises  of 
reid  estate,  but  ui)on  peculiar  bequests  of  slaves,  at  times  and 
places  at  which  they  were  considered  personal  property.  Smith 
V.  Bell,  6  Pet.  (58;  Williams  v.  Ash,  1  How.  1.  In  Smith  v. 
Bell  the  seneral  doctrine  was  not  denied  ;  and  the  decision  turned 
upon  the  construction  of  the  words  of  a  will  by  which  a  Virginia 
testator  bequeathed  all  his  personal  estate  (consisting  mostly  of 
slaves)  to  his  wife,  "  to  and  for  her  own  use  and  benefit  and  dis- 
posal absolutely  ;  the  remainder  of  said  estate,  after  her  decease, 
to  be  for  the  use  of"  his  son.  This  was  held  to  give  the  son  a 
vested  remainder,  upon  grounds  summed  up  in  two  passages 
of  the  opinion,  delivered  l)y  Chief  eJustice  Marshall,  as  follows; 
*'  The  limitation  in  remainder  shows  that,  in  the  opinion  of  the 
testator,  the  previous  words  had  given  only  an  estate  for  life. 
This  was  the  sense  in  which  he  used  them."  6  Pet.  76.  '*  The 
limitation  to  the  son  on  the  death  of  the  wife  restrains  and  limits 
the  preceding  words  so  as  to  confine  the  power  of  absolute  dis- 
position, which  they  purport  to  confer,  of  the  slaves,  to  such  a 
disposition  of  them  as  may  be  made  by  a  person  having  only  a 
life  estate  in  them."  6  Pet.  84.  In  Williams  v.  Ash,  a 
Maryland  testatrix  bequeathed  to  her  nephew  all  her  negro 
slaves,  naming  them,  "  provided  he  shall  not  carry  them  out 
of  the  State  of  Maryland,  or  sell  them  to  any  one  ;  in  either  of 
which  events  I  will  and  devise  the  said  negroes  to  be  free  for 
life."  One  of  the  slaves  was  sold  by  the  m^phew,  and,  upon 
petition  against  the  purchaser,  was  adjudged  to  be  free.  As 
stated  by  Chief  Justice  Taney,  in  delivering  the  opinion  of  the 
court,  and  recognized  in  the  statute  of  Maryland  of  1809,  c. 
171,  therein  cited  :  "  By  the  laws  of  Maryland  as  they  stood  at 
the  date  of  this  will,  and  at  the  time  of  the  death  of  the  testa- 
trix, any  person  might,  by  deed  or  last  will  and  testament,  de- 
clare his  slave  to  be  free  after  any  given  period  of  service,  or  at 
any  particular  age  or  upon  the  performance  of  any  condition, 
or  on  the  event  of  any  contingency."  1  How.  13;  3  Kilty's 
Laws.  The  condition  or  contingency,  forbidding  the  slaves  to 
be  sold  or  carried  out  of  the  State,  was,  as  applied  to  that 
peculiar  kind  of  property,  a  humane  and  reasonable  one. 
The  decision  really  turned  upon  the  local  law,  and  appears  to 


POWERS    DISTINGUISHED    FROM    ESTATES.  445 

have  been  so  understood  by  the  comt  of  appeals  of  the  State  in 
Stewart  v.  Williams,  3  Md.  425.  Chief  Justice  Taney,  indeed, 
going  l)eyond  what  was  needful  for  the  ascertainment  of  the 
rights  of  the  parties,  added:  "But  if,  instead  of  giving  free- 
dom to  the  slave,  he  had  been  bequeathed  to  some  third  person, 
in  the  event  of  his  being  sold  or  removed  out  of  the  Stale  by 
the  iirst  taker,  it  is  evident  upon  common  law  principles  that 
the  limitation  over  would  have  been  good;"  citing  Doe  v. 
Hawke,  2  East,  481.  But  the  case  cited  concerned  an  assign- 
ment of  a  leasehold  interest  only,  and  turned  upon  the  construc- 
tion of  its  particular  words,  no  question  of  the  validity  of  the 
restriction  upon  alienation  being  suggested  by  counsel  or  con- 
sidered by  the  court ;  and  the  dictum  of  Chief  Justice  Taney,  if 
applied  to  a  conditional  limitation  to  take  effect  on  any  and  all 
alienation,  and  attached  to  a  bequest  of  the  entire  interest,  legal, 
or  equitable,  even  in  personalty,  is  clearly  contrary  to  the  author- 
ities. Bradley  v.  Peixoto,  3  Ves.  324;  Tud.  Lead.  Cas.  Real 
Prop.  (3d  Ed.)  968,  and  note,  in  re  Dugdale,  38  Ch.  Div.  176; 
Corbett  v.  Corbett,  13  Prob.  Div.  136  ;  Steibv.  Whitehead,  111 
111.  247,  251  ;  Lovett  v.  Gillender,  35  N.  Y.  617. 

Tlie  case  at  bar  presents  no  question  of  the  validity  of  a  pro- 
viso that  income  bequeathed  to  a  person  for  life  shall  not  be 
liable  for  his  dehts,  such  as  was  discussed  in  Nichols  v.  Levy,  5 
Wall.  433;  in  Nicholas  v.  Eaton,  91  U.  S.  716,  and  in  Spindle 
V.  Shreve,  111  U.  S.  542;  4  Sup.  Ct.  Rep.  522.  In  Steib  v. 
Whitehead,  above  cited,  the  Supreme  Court  of  Illinois,  while 
upholding  the  validity  of  such  a  proviso,  said  :  *'  We  fully  rec- 
ognize the  general  proposition  that  one  c.innot  make  an  absolute 
gift  or  other  disposition  of  property,  particularly  an  estate  in 
fee,  and  yet  at  the  same  time  impose  such  restrictions  and  limit- 
ations upon  its  use  and  enjoyment  as  to  defeat  the  object  of 
the  gift  itself;  for  that  would  be,  in  effect,  to  give  and  not  to 
give,  in  the  same  breath.  Nor  do  we  at  all  question  the  gen- 
eral principle  that,  upon  the  absolute  transfer  of  an  estate,  the 
grantor  cannot  by  any  restrictions  or  limitations  contained  in 
the  instrument  of  transfer,  defeat  or  annul  the  legal  consequences 
which  the  law  annexes  to  the  estate  thus  transferred.  If, 
for  instance,  upon  the  transfer  of  an  estate  in  fee,  the  con- 
veyance should  provide  that  the  estate  thereby  conveyed  should 
not  be  subject  to  dower  or  curtesy,  or  that  it  should  not  des- 
cend to  the  heirs  general  of  the  grantee  upon  his  dying  intes- 
tate, or  that  the  grantee  should  have  no  power  of  disposition 
over  it,  the  provision,  in  either  of  these  cases,  would  clearly  be 
inoperative  and  void,  because  the  act  or  thing  forbidden  is  a  right 
or  incident  which  the  law  annexes  to  every  estate  in  fee-simple, 


446  POWERS    OF    APPOINTMENT. 

and  to  give  effect  to  such  provisions  would  bo  simply  permitting 
individuals  to  abrogate  and  annul  the  law  of  tiie  State  by  mere 
private  contract.  This  cannot  be  done."  111111.251.  The  re- 
straint sought  to  be  imposed  by  the  nineteenth  clause  upon  any 
alienation  i)y  the  brother  or  by  the  nei)hew  of  the  share  devised 
to  him  in  fee  being  void  for  repugiumcy,  it  follows  that  upon 
such  alienation,  or  upon  an  attem[)tto  alienate,  his  estate  was  not 
defeated,  and  no  title  passed,  under  the  devise  over,  cither  to  the 
nephew  in  the  share  of  the  brother,  or  to  the  daughter  or  her 
children  in  the  share  of  the  brother  or  of  the  nephew  ;  and  there- 
fore nothing  passed  by  the  daughter's  deed  to  her  husband. 

For  the  reasons  already  stated,  the  appeal  of  the  nephew,  Ira 
Couch,  from  so  much  of  the  decree  below  as  declared  the  legal  title 
under  the  residuary  devises  to  have  vested  at  the  expiration  of  20 
years  from  the  testator's  death,  is  well  taken ;  and  the  equitable 
estate  in  fee  in  one-fourth  of  the  residue  of  the  testator's  prop- 
erty, having  vested  in  Ira  Couch  from  the  death  of  the  testator, 
passed  by  his  deed  of  assignment  to  Dupee,  and  by  mesne  con- 
veyances back  to  him.  The  various  alienations  of  the  share  of 
the  brother,  James  Couch,  require  more  consideration. 

4.  The  appellant  Potter  claims  the  share  of  James  Couch 
underproceedings  againsthim  by  his  creditors,  atlawandin  equity, 
the  effect  of  which  depends  upon  the  statute  of  Illinois.  As  we 
have  already  seen,  the  legal  title  in  fee  was  vested  in  the  trustees, 
not  under  a  passive,  simple,  or  dry  trust,  with  no  duty  except  to 
convey  to  the  persons  ultimately  entitled,  but  under  an  active 
trust,  requiring  the  continuance  of  the  legal  title  in  the  trustees 
to  enable  them  to  perform  their  duties  ;  and  until  the  trustees  had 
divided  the  i)roperty,  either  by  conveying  the  lands  to  the  resid- 
uary devisees,  or  by  selling  them,  and  distributing  the  proceeds 
among  those  devisees,  James  Couch  had  only  an  equitable  inter- 
est in  the  testator's  whole  estate,  and  i\o  title  in  any  specific  part 
of  his  property,  real  or  personal.  Such  being  the  facts  it  is 
quite  clear  that  the  trust  was  not  executed,  so  as  to  vest 
the  legal  title  in  him,  by  the  statute  of  uses  of  Illinois. 
Kurd's  Rev.  St.  1874,  c.  30,  §  3;  Meacham  v.  Steel,  93 
111.  135;  Kellogg  V.  Hale,  108  111.  164.  It  is  equally 
clear  that  such  an  equitable  interest  was  not  an  estate  on 
which  a  judgment  at  law  would  be  a  lien,  or  an  execution  at  law 
could  be  levied,  under  the  Illinois  statute  of  judgments  and  exe- 
cutions, although  the  term  "  real  estate,"  as  used  in  that  statute, 
is  declared  to  include  "  lands,  tenements,  hereditaments,  and  all 
legal  and  equitable  rights  and  interests  therein  and  thereto." 
Kurd's  Rev.  St.,  c.  77,  §§  1,  3,  10;  Brandies  v.  Cochrane,  112 
U.  S.  344;   5  Sup.  Ct.  Rep.  194;   Baker  v.  Copenbarger,  15  111. 


POWERS    DISTINGUISHED  FROM    ESTATES.  447 

103  ;  Thomas  v.  Ecknrd,  88  111.  55»3  ;  Havvard  v.  Peavey,  128  111. 
430;  21  N.  E.  Rep.  203.  By  the  chancery  act  of  Illinois, 
"  whenever  an  execution  shall  have  been  issued  against  the 
properly  of  a  defendant,  on  a  judgment  at  law  or  equity,  and 
shall  have  been  returned  unsatisfied,  in  whole  or  in  part,  the  party 
suing  out  such  execution  may  file  a  bill  in  chancery  against  such 
defendant  and  any  other  person,  to  compel  the  discovery  of  any 
property  or  thing  in  action  belonging  to  the  defendant,  and  of 
any  property,  money,  or  thing  in  action  due  to  him  or  held  in 
trust  for  him,  and  to  prevent  the  transfer  of  any  such  property, 
money,  or  thing  in  action,  or  the  payment  or  delivery  thereof, 
to  the  defendant,  except  when  such  trust  has  in  good  faith 
been  created  by,  or  the  fund  so  held  in  trust  has  proceeded 
from,  some  person  other  than  the  defendant  himself."  Kurd's 
Rev.  St.,  c.  22,  §  49.  This  statute,  as  has  been  adjudged  by 
this  court,  establishes  a  rule  of  property,  and  not  of  pro- 
cedure only,  and  applies  to  all  cases  where  the  creditor  or  his 
representative  is  obliged,  by  the  nature  of  the  interest  sought  to 
be  reached,  to  resort  to  a  court  of  equity  for  relief,  as  he  must 
do  in  all  cases  where  the  legal  title  is  in  trustees,  for  the  purpose 
of  serving  the  requirements  of  an  active  trust,  and  where,  con- 
sequently, the  creditor  has  no  lien,  and  can  acquire  none,  at  law, 
but  obtains  one  only  by  filing  a  bill  in  equity  for  that  purpose. 
The  words  "  in  trust,"  as  used  in  the  exception  or  proviso,  can- 
not have  a  more  restricted  meaning  than  the  same  words  in  the 
enacting  clause.  Spindle  v.  Shreve,  111  U.  S.  542,  546,  547; 
4  Sup.^  Ct.  Rep.  522;  Williams  v.  Thorn,  70  N.  Y.  270,  277; 
Hardenburgh  v.  Blair,  30  N.  J.  Eq.  645,  Q66.  As  the  only  title 
of  James  Couch  in  the  property  devised  was  an  equitable  inter- 
est, which  could  not  lawfully  have  been  taken  on  execution  at 
law  against  him,  and  as  the  trust  was  an  active  trust,  "  in  good 
faith  created  by,"  and  **  the  fund  so  held  in  trust  proceeded 
from,"  the  testator,  "a  person  other  than  the  defendant  him- 
self," the  letter  and  the  spirit  of  the  statute  alike  require  that 
this  equitable  interest  should  not  be  charged  for  his  debts.  It 
follows  that  neither  the  judgments  and  executions  at  law  nor  the 
suits  in  equity  against  James  Couch  gave  any  lien  or  title  to  his 
creditors;  and  that  the  deed  from  him  to  a  receiver  was  wrongly 
ordered  by  the  State  court  in  which  one  of  the  suits  was  com- 
menced, and  was  rightly  set  aside  by  the  circuit  court  since  the 
removal  of  that  suit. 

5.  The  appellant  Hale  claims  the  share  of  James  Couch 
under  a  deed  from  him  and  his  wife.  The  interest  con- 
veyed by  that  deed  being  an  equitable  interest  only.  Hale 
requires  the  aid  of  a  court  of  equity  to  perfect  his  title,  and 


448  POWERS    OF    APPOINTMENT. 

would  have  to  seek  it  by  cross  hill  hut  for  the  order  of  the  cir- 
cuit court  that  each  answer  should  be  taken  as  a  cross  bill.  The 
real  consideration  of  that  conve3'ance  was  an  asrrcoment  by  which 
Hale  promised  to  buy  up  the  existing  judgments  against  James 
Couch,  to  sell  the  interest  conveyed  by  the  deed  of  James  and 
wife,  and  to  pay  the  wile  one-half  of  the  net  proceeds.  In  fact  he 
bought  up  some  of  the  ju'lgments  only,  and  sold  those  again,  and 
never  performed  his  agreement  in  this  or  any  other  particular. 
Consequently  ho  is  not  entitled  to  the  affirniative  interposition 
of  a  court  of  equity  to  obtain  the  interest  included  in  the  deed. 
Towle  V.  Ambs,  123  111.  410 ;  14  N.  E.  Rep.  689. 

6.  It  remains  only  to  consider  the  contention  that  by  the 
instrument  of  January  8,  1877,  the  devisees  entered  into  an 
agreement  by  which  they  took  the  whole  estate  as  tenants  in 
common,  and  rendeied  any  division  unnecessary;  and  therefore 
all  the  duties  of  the  trustees  ended,  and  the  legal  title  vested  in 
the  residuary  devisees,  at  the  expiration  of  20  years.  Undoubt- 
edly, those  interested  in  property  held  in  trust,  and  ultimately 
entitled  to  the  entire  proceeds,  may  elect  to  take  the  property  in 
its  then  condition,  and  to  hold  it  as  tenants  in  common  ;  but  the 
acts  showing  an  intention  so  to  take  must  be  unequivocal,  and 
must  be  concurred  in  by  all  the  parties  interested.  Young  v. 
Bradley,  101  U.  S.  782;  Baker  v.  Copenbarger,  15  III.  103; 
Ridgeway  v.  Underwood,  67  III.  419;  1  Jarm.^Wills  (4th  Ed.), 
598-602.  In  the  present  case  the  instrument  in  question  cannot 
have  this  effect,  for  two  reasons.  In  the  first  place,  it  manifested 
DO  intention  to  alter  in  any  way  the  exist  nig  titles  of  the  resid- 
uary devisees,  either  as  being  legal  or  equitable,  or  as  being  in 
severalty  or  in  common,  but  was  sim|)ly  a  power  of  attorney, 
the  object  of  which  was  to  continue  Woods  management  of  the 
estate  as  a  whole,  as  under  the  twenty-first  clause  of  the  will. 
In  the  next  place,  the  instrument  was  not  executed  by  or  in  be- 
half of  all  the  parties  in  interest,  inasmuch  as  it  was  not  exe- 
cuted by  any  one  authorized  to  affect  the  share  devised  for  the 
daughter's  benefit  for  life,  and  to  her  children  or  appointees 
after  her  death.  By  the  clear  terms  of  the  twentieth  clause  of 
the  will,  neither  the  daughter  nor  her  husband  had  any  authority 
to  do  this,  and  her  trustees  had  no  power  over  her  share  until  it 
had  been  conveyed  or  set  apart  to  them  by  the  trustees  under 
the  will;  and,  if  the  trustees  under  the  will  were  duly  consti- 
tuted trustees  for  her  and  for  her  children  (which  is  disputed), 
they  had  no  greater  power  in  this  respect  before  the  estate  was 
divided,  than  distinct  trustees  would  have  hud. 

The  result  is  that  the  decree  of  the  circuit  court  must  be 
affirmed  in  all  respects,  except  that  the  declaration  therein  as  to 


POWERS  .t)lSTlNQUISHED   FROM   ESTATES.  449 

the  time  when  the  legiil  estitte  of  I  ho  icslduiiry  devisees  vested 
must  be  mo(lifi('<l  in  acconhim  o  with  the  opinion  of  this  t;ourt. 
This  conchisioii,  by  wiiich  the  biothcr  jiiid  the  nephew  take  the 
shares,  origintilly  devised  to  tlietn,  carries  out  the  intention  of 
the  testator,  though  probably  not  l>y  the  same  steps  that  he 
contemplated.  Decree  accordingly  ;  the  apipellants  in  each 
ap[)eal,  cxce[)t  »]anios  Couch,  to  pay  one-fourth  of  the  costs, 
including  the  co>-t  ot"  printing  the  record. 

Brewer  and  Brown,  JJ.,  took  no  part  in  the  decision  of  this 
case. 

Note.  —  *'  First.  I  do  hereby  give,  l)equeath  and  devise  unto 
my  beloved  wile,  Caroline  Elizabeth  Couch,  and  my  brother, 
Jan)ed  Couch,  and  my  broiher-in-law,  "VViliiain  H.  Wood,  whom 
I  hereby  constitute,  make  and  a[)point  to  be  my  executrix,  ex- 
ecutors and  trustees  of  this  my  last  will  and  testament,  and  the 
survivors  of  them,  and  in  the  event  of  the  death  of  either  of 
them  the  successor  ap|)oint(>d  l>y  the  surviving  trustee  or  trustees, 
all  my  estate,  both  real  and  personal,  of  every  nature  and  de- 
scription,for  the  term  of  twenty  years,  in  trust,  and  for  the  uses 
and  objects  and  purposes  hereinafter  mentioned  and  expressed, 
and  for  the  purpose  of  enabling  them  more  fully  to  carry  into 
effect  the  provisions  of  this  will,  and  for  no  otiier  use,  purpose 
or  object ;  hereby  giving  and  granting  unto  my  said  executors 
and  trustees  full  power  and  lawful  authority  to  lease  my  real 
estate  at  such  time  or  times,  and  in  such  parcels,  and  in  such  way 
and  manner,  and  upon  such  terms  and  conditions  as  to  my  said 
executors  and  trustees,  or  the  snrvivois  or  su(^cessors  of  them, 
in  their  sound  discretion,  shall  he  deemed  mo^t  advantageous 
and  for  the  true  interest  of  my  e^^tate  ;  but  no  lease  shall  be 
granted  of  any  building  for  a  longer  term  than  five  years,  and 
all  leases  shall  ex])ire  at  the  end  of  twenty  years  from  the  time  of 
my  death.  And  I  do  also  hereby  authorize  and  empower  my 
said  executors  and  trustees,  and  the  survivor  or  survivors  of 
them,  and  their  successors,  from  time  to  time,  as  they  in  tlie  ex- 
ercise of  a  sound  discretion,  shall  deetn  for  the  true  interest  of  the 
estate,  to  purchase  with  the  suiplus  funds,  belonging  to  my  es- 
tate such  real  estate  as  they  may  deem  proper  and  expedient, 
and  take  and  hold  the  same,  as  such  executors  and  trustees  as 
aforesaid,  upon  the  same  trusts,  and  for  the  same  uses  and  pur- 
poses, as  the  other  real  estate  now  owned  by  me  ;  and  more 
especially  to  purchase  for  the  benefit  and  use  of  my  estate,  when 
they,  my  said  executors  and  trustees,  or  the  survivors  and  sur- 
vivor of  them,  or  successors,  shall  think  it  expedient  so  to  do, 
any  real  estate  which  is  or  may  be  subject  to  any  such  judgment, 
decree,  or  mortgage  as  is  or  at  any  time  hereafter  may  become  a 

29 


450  POWKKS    OF    APPOINTMENT. 

lien,  charge,  or  incumbrance  for  my  benefit,  or  for  the  benefit 
of  my  h(Mr.s  or  executors,  upon  th(;  same,  and,  again,  that  my 
said  executors  and  trustees  have  the  like  dit^ciftion  to  lease  the 
same.  And  1  do  hereby  authorize  my  said  executors  and  trus- 
tees, if  they  shall  tliink  proper  so  to  do,  to  h)an  on  real  estate 
situate  in  the  city  of  Chicago  any  of  the  surplus  moneys  arising 
from  my  said  estate,  as  aforesaid,  on  bond  and  mortgage  ;  pro- 
vided, always,  that  such  real  estate  shall  be  worth  double  the 
amount  so  loaned  thereon,  over  and  above  any  other  liens  and 
incuml)rance8  existing  against  the  same,  and  that  such  moneys 
shall  not  be  loaned  for  a  longer  period  than  twenty  years  from 
my  decease.  And,  generally,  I  do  hereby  fully  authorize  and 
empower  my  said  executors  and  trustees,  from  time  to  time,  to 
improve  my  real  estate,  and  invest  all  surplus  moneys  l)elonging 
to  my  estate,  arising  from  any  source  whatever,  and  not  wanted 
immediately,  or  required  to  meet  the  payments  and  advances, 
legacies,  annuities,  and  charges  required  to  be  made  under  this, 
my  said  will,  in  such  way  and  manner  as  to  them,  my  said  exec- 
utors and  trustees,  or  the  survivor  or  successors  of  them,  in  the 
exercise  of  a  sound  discretion,  shall  be  deemed  most  safe  and 
productive,  but  no  moneys  are  to  l)e  invested  except  in  improv- 
ing my  real  estate  or  in  the  purchase  of  other  real  estate,  or  on 
bond  and  mortgage  as  aforesaid.  And  I  direct  that  my  execu- 
tors or  trustees,  or  their  successors,  shall  not  purchase  or  im- 
prove by  building  upon  any  real  estate  after  the  expiration  of 
sixteen  yeais  from  my  decease.  Relying  on  the  fidelity  and 
prudence  of  my  said  executors  and  trustees  in  executing  the 
various  trusts  to  them  given  and  confided  in  and  by  this,  my  last 
will  and  testament,  my  executors  are  authorized  to  mortgage  my 
real  estate  to  improve  by  building  on  the  same,  only  in  the  event 
of  the  destruction  of  some  of  my  buildings  by  the  elements,  and 
then  only  to  supply  other  buildings  in  the  place  of  those  destroyed. 
It  is  my  will  that  all  my  just  debts  and  the  charges  of  funeral 
expenses  be  paid  and  discharged  by  my  executors,  as  hereinafter 
named  and  appointed,  out  of  my  estate,  as  soon  as  conveniently 
may  be  after  my  decease,  and  the  said  debts  become  due;  and  I 
leave  the  charge  of  my  funeral  expenses  to  the  discretion  of  my 
said  executors. 

"  fSeco7i(l.  I  give,  devise,  and  bequeath  to  my  beloved  wife, 
Caroline  Elizabeth  Couch,  after  the  expiration  of  the  trust- 
estate  vested  in  my  executors  and  trustees  for  the  term  of  twenty 
years  after  my  decease,  one-fourth  part  of  all  my  estate,  both 
real  and  personal,  after  the  payment  of  all  my  debts,  funeral 
expenses,  and  the  legacies  in  this  will  mentioned,  which  are 
hereby  made  a    charge   on    said   real   estate,    which    part   is    to 


POWERS    DISTINGUISHED    FROM    ESTATES.  451 

bo  accepted  by  my  said  wife  and  icceived  by  ber  in  lieu  of 
dower. 

"  Third.  I  jrive,  devise,  and  bequeath  unto  my  beloved 
diiuirhter,  Caroline  Elizabeth  Couch,  after  the  expiration  of  the 
trust-estate  so  vested  as  aforesaid,  one  fourth  )).irt  of  all  my 
estate,  hoth  real  and  i)ersonal,  after  the  ))aynient  of  all  n)V 
debts,  funeral  expenses,  and  the  legacies  in  this  will  mentioned. 

"  Fourlh.  I  give,  devise,  and  bequeath  unto  my  Itrother, 
James  Couch,  after  the  expiration  of  the  trust-estate  so  vested 
as  aforesaid,  one-fourth  of  all  my  estate,  both  real  and  per- 
sonal, alter  the  payment  of  all  my  debts,  funeral  expenses,  and 
the  legacies  in  this  will  mentioned. 

^^  Fifth.  I  give,  devise,  and  bequeath  unto  my  nephew,  Ira 
Couch,  son  of  my  brother,  James,  after  the  expiration  of  the 
trust-estate  so  vested  as  aforesaid,  the  remaining  one-fourth 
part  of  all  my  estate,  both  real  and  personal,  after  the  payment 
of  all  my  just  debts,  funeral  expenses,  and  the  legacies  in  this 
will  mentioned. 

"  Sixth.  I  hereby  will  and  direct  that  the  said  legacies  here- 
inafter mentioned  shall  be  chaiged  on  my  real  estate,  to  be  paid 
out  of  the  rents  and  profits  thereof  as  hereinafter  directed. 

"  Tenth.  I  give  and  bequeath  to  my  wife,  Caroline  Elizabeth 
Couch,  for  the  support  of  herself  and  daughter,  from  the  rents 
of  my  real  estate,  the  sum  of  ten  thousand  dollars  a  year  until 
all  the  debts  due  by  mo  are  paid  by  my  executors,  and  alter  my 
executors  have  paid  such  debts  I  give  and  bequeath  to  her  for 
the  same  purpose  fifteen  thousand  dollars  a  year,  to  be  paid 
quarterly  to  her  until  my  daughter  becomes  of  age  or  is  mar- 
ried, when  my  daughter  may  draw  one-fourth  of  all  the  net- 
rents  and  profits,  alter  payment  of  all  expenses,  taxes,  repairs, 
legacies,  annuities,  and  other  charges  on  my  s;|id  estate;  and 
my  wife  may  draw  ten  thousand  dollars  a  year  until  my  nephew, 
Ira  Couch,  attains  his  majority,  when  she  shall  draw  one-fourth 
of  all  the  net  rents  and  profits,  after  paying  all  expenses,  taxes, 
re[)airs,  legacies,  annuities,  and  other  charges  as  aforesaid. 

"  Eleventh.  I  give  and  bequeath  to  my  brother,  James  Couch, 
for  the  support  of  himself  and  family,  from  the  rent  of  my  real 
estate,  the  sum  of  ten  thousand  dollars  a  year,  to  be  paid  quar- 
terly until  all  the  debts  due  by  me  are  paid  by  my  executors,  and 
after  such  debts  due  by  me  are  paid  I  give  to  him  for  the  same 
purpose  fifteen  thousand  dollars  a  year,  to  be  paid  quarterly  to 
hiu)  until  my  nephew,  Ira  Couch,  attains  his  majority,  after  which 
time  I  give  to  my  brother,  James  Couch,  one-fourth  j)iirt  of  all 
the  nit  rents,  income,  and  profits  of  my  estate,  to  be  paid  him  by 


452  1»0WEI{S    OV    APPOINTMENT. 

mv  executors  quarterly  until  llio  final  division  of  my  estate,  which 
shall  tako  place  at  the  end  of  twenty  years  after  my  decease, 
and  not  soonei'. 

"  Sixleenlh.  I  will  and  direct  that  no  part  of  my  estate, 
neither  the  real  nor  the  personal,  shall  he  sold,  mortgaged  (ex- 
cept for  building),  or  in  any  manner  incumbered  until  the  end  of 
twenty  years  from  and  after  my  decease,  when  it  may  be  divided 
or  sold  for  the  purposes  of  making  a  division  between  my  devisees 
as  herein  directed. 

*'  8eve7i(eenth.  It  is  my  will  that  any  and  all  real  estate  which 
may  hereafter  be  purchased  by  me  shall  be  disposed  of,  and  is 
hereby  devised,  in  the  same  manner  and  to  the  same  persons  as 
if  owned  by  me  at  the  time  of  making  this,  my  last  will  and 
testament. 

'■'-  Eighteenth.  In  the  event  of  any  of  the  legatees  or  annui- 
tants being  alive  at  the  end  of  twenty  years  after  my  decease,  it 
is  my  will,  and  I  hereby  direct,  that  there  shall  be  a  division  of 
all  my  estate,  both  real  and  personal,  at  the  end  of  said  twenty 
years,  anything  herein  contained  to  the  contrary  notwithstand- 
ing ;  and  in  such  case  my  executors,  in  making  division  of  the 
said  estate,  shall  apportion  each  legacy  or  annuity  on  the  estate 
assigned  to  my  devisees,  who  are  hereby  charged  with  the  pay- 
ment of  the  same  according  to  the  apportionment  of  my  said 
executors. 

*♦  Nineteenth.  It  is  my  will  that  ray  trustees  aforesaid  shall  pay 
the  several  gifts,  legacies,  annuities,  and  charges  herein  to  the 
persons  named  in  this  will,  and  that  no  creditors  or  assignees  or 
purchasers  shall  be  entitled  to  any  part  of  the  bounty  or  bounties 
intended  to  be  given  by  me  herein  for  the  personal  advantage  of 
the  persons  named  ;  and  therefore  it  is  my  will  that,  if  either  of 
the  devisees  or  legatees  named  in  my  will  shall  in  any  way  or 
manner  cease  to  be  personally  entitled  to  the  legacy  or  devise 
made  by  me  for  his  or  her  benefit,  the  share  intended  for  such 
devisee  or  legatee  shall  go  to  his  or  her  children,  in  the  same 
manner  as  if  such  child  or  children  had  actually  inherited  the 
same;  and,  in  the  event  of  such  person  or  persons  having  no  ' 
children,  then  to  my  daughter  and  her  heirs. 

"  Twentieth.  It  is  my  will  that  the  estate,  both  real  and  per- 
sonal, hereby  devised  and  bequeathed  to  my  daughter,  Caroline 
Elizabeth,  shall  be  vested  in  trustees,  to  be  chosen  by  herself  and 
my  trustees  herein  named,  before  her  marriage;  and  said  trus- 
tees shall  be  three  in  number,  to  whom  all  her  estate,  both  real 
and  personal,  shall  he  conveyed  at  the  expiration  of  twenty 
years,  the  time  hereinbefore  specified  for  the  termination  of  the 


POWERS    DISTINGUISHED  FROM    ESTATES.  453 

estate  of  my  trustees  herein,  to  such  trustees  so  to  be  appointed 
as  aforesaid  ;  and  it  is  my  will  that  the  estate,  both  real  and 
personal,  herein  devised  and  bequeathed  for  the  benefit  of  my 
daughter,  shall  be  held  by  such  trustees  for  her  sole  and  only 
use  and  benefit,  and  that  the  same  shall  not  in  any  manner  be 
subject  to  the  marital  rights  of  any  future  husband  my  daughter 
may  have,  and  that  all  moneys  shall  be  paid  by  such  trustees  to 
my  daughter  personally,  and  to  no  other  person  for  her,  except 
upon  her  written  order  or  assent;  and  it  is  my  will  that  her 
said  trustees  pay  to  her  during  her  life  the  entire  net  income  of 
the  estate,  both  real  and  personal,  herein  devised  and  bequeathed 
to  my  daughtei*,  after  the  same  shall  have  been  conveyed  to  her 
trustees  by  my  executors  and  trustees  or  their  successors  ;  and 
after  the  death  of  my  said  daughter  I  direct  that  the  said  estate, 
both  real  and  personal,  shall  be  conveyed  to  the  children  of  my 
daughter,  and,  in  the  event  of  her  having  no  children,  to  such 
person  as  my  daughter  may  direct  by  her  last  will  and  testament. 

"  Twenty-first.  It  is  my  wish  also,  that  William  H.  Wood, 
my  executor  and  trustee,  shall  be  charged  with  and  take  upon 
himself  the  collection  of  all  rents  accruing  to  my  estate,  and 
that  he  shall  continue  to  perform  the  same  during  the  period  of 
twenty  years  after  my  decease  ;  and  for  the  performance  of  this 
service  and  other  services,  and  for  his  general  care  and  super- 
vision of  the  affairs  of  my  estate,  I  hereby  direct  that  the  sum 
of  two  thousand  dollars  per  annum  shall  be  paid  to  him ;  but  in 
the  event  of  his  decease  before  entering  upon  said  duties,  or 
before  the  twenty  years  aforesaid  shall  expire,  or  shall  decline 
to  act  as  in  this  section  provided,  I  hereby  authorize  and  direct 
my  said  trustees  to  appoint  some  other  person  to  act  in  his 
stead  in  collecting  said  rents  and  performing  the  other  duties  as 
above  specified,  and  to  pay  him  the  same  compensation  therefor 
which  said  Wood  would  have  had. 

"  Twenty -second.  And,  in  the  event  of  the  marriage  of  my 
said  wife  after  my  decease,  it  is  my  will  and  I  hereby  authorize 
and  direct  my  said  trustees  and  executors  to  pay  over  to  my  said 
wife,  and  to  no  other  person,  the  rents,  annuities,  legacies  and 
other  income  herein  bequeathed  to  my  said  wife,  and  to  take  her 
separate  receipts  therefor;  and  it  is  my  will  that  my  said  trus- 
tees and  their  successors,  in  such  case,  hold  the  same  subject  to 
her  order,  in  trust  for  my  said  wife,  so  that  said  property  so 
<1<  vised  and  bequeathed  to  her  as  aforesaid  can  in  no  event  be 
suhjeet  to  the  marital  rights  of  such  husband." 


454  POWERS    OF    APPOINTMENT. 

Execution  of  Power  by  Implication. 

Mut.  L.  Ins.  Co.  V.  Shlpman,  119  N.  Y.  ;524;  24  N.  E.  177. 

Roger,  C.  J.  Parson  G.  Shipman  died  January  18,  1871, 
leaving  him  surviving,  Elizabeth  L.  Shipman,  his  widow,  and 
seven  chiKlren,  and  owning  real  estate,  whicii  he  devised  to  his 
wife  so  long  as  she  should  remain  his  widow,  and,  upon  her 
death  or  marriage,  to  the  children  born  to  him  by  her.  The 
widow  was  made  executrix  of  the  will,  and  was  authorized  to 
make  advances  from  the  property,  in  her  discretion,  from  time 
to  time,  to  his  several  children  "  for  maintenance  and  suj)[)ort," 
and  was  empowered  to  mortgage,  h  ase,  and  dispose  of  such 
property  for  the  purpose  of  carrying  into  effect  the  provisions 
of  the  will.  In  June,  1876,  before  disposing  of  the  real  estate, 
the  widow  married  one  Campbell,  and  was  his  wife  at  the  time 
of  the  execution  of  the  mortgages  giving  rise  to  this  contro- 
versy. In  April,  1877,  the  widow  executed  a  mortgage  to  the 
Rochester  Savings  Bank  on  said  real  estate,  i,n  her  individual 
name,  to  secure  the  repayment  to  the  mortgagee  of  a  loan  of 
money.  The  mortgage  contained  no  reference  to  the  character 
of  the  mortgagor  as  executrix,  or  to  the  power  to  mortgage 
contained  in  the  will,  but  appeared,  on  its  face,  to  be 
the  individual  obligation  of  the  widow.  This  mortgage  was 
paid  from  the  proceeds  of  a  subsequent  loan  obtained  from 
the  plaintiff  upon  a  mortgage  of  the  same  property;  and 
the  question  in  this  case  is  whether  the  yilaintiff,  having  knowl- 
edge of  the  purpose  of  the  borrower,  —  to  pay  the  prior 
loan  with  the  moneys  borrowed  —  had  notice  that  such  moneys 
were  not  to  be  used  for  the  purposes  of  the  will;  the  accom- 
plishment of  such  purposes  i)eing  the  only  authority  under 
which  she  was  by  the  will  authorized  to  mortgage  such  real 
estate. 

It  is  not  disputed  but  that  the  widow,  upon  the  death  of  her 
husband,  became  entitled  to  a  right  of  dower  consummate  in  the 
real  estate  ;  and  upon  her  marriage  with  Campbell,  in  187G,  the 
fee  of  the  real  estate  vested  in  the  children,  subject  to  the  ex- 
ecution of  the  power,  and  also  subject  to  the  right  of  dower. 
It  was  also  established  by  the  proof  that  both  mortgage  loans 
were,  in  fact,  made  for  the  benefit  of  Campbell,  the  widow's 
second  husband,  and  not  for  any  purpose  of  the  will.  The  ques- 
tion in  the  case  is,  therefore,  whether  the  interest  attempted  to 
be  transferred  by  the  first  mortgage  is  ascribable  to  the  power 
conferred  by  the  will  to  mortgage  the  whole  estate,  or  must  be 
restricted  to  the  individual  interest  which  the  mortgasor  had  as 


EXECUTION    OP    POWER    BY    IMPLICATION.  455 

dowressiii  such  lands.  In  the  absence  of  the  provision  contained 
in  the  chapter  of  the  Revised  Statutes  relating  to  powers,  there 
could,  we  think,  be  but  little  doubt  that  it  would  be  held  to  con- 
vey only  such  interest  as  the  mortgagor  possessed  in  her  individ- 
ual right.  It  is  said  by  Perry,  in  his  work  on  Trusts  (section 
511),  that,  "  if  a  donee  of  a  power  to  sell  land  have  also  an  in- 
terest in  his  own  right  in  the  same  land,  his  deed  of  the  land, 
making  no  reference  to  the  power,  will  convey  only  his  own  in- 
terest ;  for  there  is  a  subject-matter  for  the  deed  to  operate  upon, 
excluding  the  power."  Sugden  on  Powers  (3d  Amer.  Ed.  477) 
states  the  rule:  "  The  doctrine  settled  by  the  decisions  seems  to 
be  this:  When  the  donee  of  a  power  to  sell  land  possesses  also 
an  interest  in  the  subject  of  the  power,  a  conveyance  by  him, 
without  actual  reference  to  the  power,  will  not  be  deemed  an 
execution  of  it,  except  there  be  evidence  of  an  intention  to  exe- 
cute it,  or  at  least  in  the  face  of  evidence  disproving  such  intent." 
Kent's  Commentaries  (volume  4,  p.  371,  11th  Ed.)  says:  "The 
general  rule  of  construction,  both  as  to  deeds  and  wills,  is  that 
if  there  be  an  interest  and  a  power  existing  together  in  the  same 
person  over  the  same  subject,  and  an  act  be  done  without  a  par- 
ticular reference  to  the  power,  it  will  be  applied  to  the  interest, 
and  not  to  the  power.  If  there  l)e  any  legal  interest  on  which 
the  deed  can  attach  it  will  not  execute  a  power."  The  rule  of 
construction  laid  down  in  these  authorities  seems  to  have  been 
established  long  before  the  enactment  of  our  Revised  Statutes, 
and  was  in  the  immediate  contemplation  of  the  revisors  when 
they  framed  section  124,  art.  3,  tit.  2,  c.  1,  pt.  2,  vol.  2  (3d 
Ed.),  reading  as  follows:  ♦'  Every  instrument,  executed  by  the 
grantee  of  a  power,  conveying  an  estate. or  creating  a  charge 
which  such  grantee  would  have  no  right  to  convey  or  create 
unless  by  virtue  of  his  power,  shall  be  deemed  a  valid  execution 
of  the  power,  although  such  power  be  not  recited  or  referred  to 
therein."  This  section  is  couched  in  broad  and  liberal  lansfuase 
and  seems  to  have  been  adopted  for  the  purpose  of  combining 
in  the  statutory  regulations  regardmg  powers  all  such  existing 
rules  in  respect  to  the  sul)ject  as  it  was  thought  desirable  and 
necessary  to  adopt  and  enforce  in  this  country.  There  is  no 
reason  for  sup[)Osing  that  the  law-makers  intended  to  change 
the  existing  rule  and  adopt  one  which  should  create  a  marked 
and  essential  difference  in  the  law  from  which  it  had  been  for  a 
long  period  of  time  in  the  country  from  whose  jurisprudence 
our  statutes  in  relation  to  powers  were  mainly  derived.  The 
rule  was  founded  in  reason  and  good  sense,  and  wns  intended  to 
provide  that  whenever  a  single  power  exists,  under  whiih  a 
grantor  may  convey  or  mortgage  real  estate,  his  conveyance  is 


456  POWKRS    OF    APPOINTMENT. 

to  be  attributed  to  the  exercise  of  tiie  power  actually  possessed 
by  him  ;  but  that  whenever,  in  addition  to  a  power,  he  is  also 
invested  with  other  independent  interests  or  powers,  whether 
legal  or  equitable,  with  respect  to  the  same  property,  under  the 
authority  of  either  of  which  he  may  lawfully  act,  the  rule  of 
the  statute  should  not  apply. 

There  can  be,  we  think,  no  question  but  that  the  mortgagor 
in  this  case  came  within  the  meaning  and  spirit  of  this  rule,  as  a 
person  having  independent  rights  and  interests  in  the  property 
njortgaged,  in  addition  to  the  testamentary  power.  Aside  from 
the  power,  she  had  possession  of  the  land  under  a  consummate 
right  of  dower,  of  which  she  could  enforce  admeasurement. 
Although  this  right,  whde  unassigned,  did  not  give  her  a  legal 
estate  in  the  land,  it  is  now  well  settled  that  it  was  a  legal 
interest,  and  constituted  property  which  was  capable  in  equity 
of  being  sold,  transferred  and  mortgaged  by  the  dowress, 
and  liable  to  be  reached  b}'^  creditors  in  payment  of  her 
debts.  Tompkins  v.  Fonda,  4  Paige,  488;  Siraar  v.  Canady, 
53  N.  Y.  298;  Payne  v.  Becker,  87  N.  Y.  153;  Pope  v. 
Mead,  99  N.  Y.  201  ;  1  N.  E.  Rep.  671  ;  Bostick  v.  Beach,  103 
N.  Y.  414;  9  N.  E.  Rep.  41.  Judge  Folger,  in  Simar  v. 
Canady,  said:  "  We  think  that  it  must  be  considered  as  settled 
in  this  State,  notwithstanding  Moore  v.  Mayor  [8  N.  Y.  110], 
and  some  dicta  in  other  ca^es,  that  as  between  a  wife  and  any 
other  than  the  State  or  its  delegates  or  agents  exercising  the 
rigiit  of  eminent  domain,  an  inchoate  right  of  dower  in  lands  is  a 
subsisting  and  valuable  interest,  which  will  be  protected  and  pre- 
served to  her,  and  that  she  has  a  right  to  action  to  that  end." 
Judge  Danforth,  in  Payne  v.  Becker,  says:  "  Both  upon  princi- 
ciplo  and  authority,  therefore,  we  must  hold  that  the  widow's 
right  or  claim  of  dower,  is  property  ;  that,  like  any  other  species 
of  property,  it  may  be  reached  and  applied  to  the  payment  of 
her  debts."  Judge  Rapallo,  in  Bostwick  v.  Beach,  says:  "  The 
point  made  on  the  part  of  the  defendant,  that  she  could  not 
dispose  of  her  dower  before  it  was  admeasured,  is  decided 
adversely  to  her  in  the  case  of  Payne  v.  Becker."  In  Pope  v. 
Mead  it  is  said  that  a  dower  right,  although  not  admeasured, 
is  an  absolute  right,  which  is  assignable.  That  dower,  before 
assignment,  is  an  interest  in  lands,  within  the  meaning  of  the 
statute  of  frauds,  is  held  in  Finch  v.  Finch,  10  Ohio  St. 
501;  Lothrop  v.  Foster,  51  Me.  367;  and  is  fairly  implied 
in  Tompkins  v.  Fonda,  and  Payne  v.  Becker,  supra.  It 
has  been  held  that  a  release  of  an  inchoate  right  of  dower  con- 
stitutes a  good  consideration  for  a  promise  to  })ay  (Garlick  v. 
Strong,  3  Paige,  440);   and    that   the  existence  of  an  inchoate 


EXECUTION    OF    POWER    BY    IMPLICATION.  457 

right  of  dower  in  the  equity  cf  redemption  of  mortgaged  prem- 
ises constitutes  a  good  objection  to  title  \)y  a  vendee  in  jin  action 
aijainst  iiim  for  specific  performunco  (Mills  v.  Van  Voorhies, 
20  IS.  Y.  412).  Judge  Solden,  writing  in  that  case  upon  the 
effect  of  an  omission  to  make  the  wife  of  a  mortgagor  a  party 
to  a  foreclosure  suit,  says  :  "  Whether  at  common  law  it  would 
be  necessary  to  make  her  a  party  must  depend  upon  the  ques- 
tion whether  she  has  any  interest,  either  legal  or  equitable, 
complete  or  inchoate,  in  the  mortgaged  premises.  If  she  has 
such  an  interest,  however  remote,  then  upon  the  plainest  and 
most  familiar  principles,  that  interest  cannot  be  affected,  unless 
by  virtue  of  some  statute,  by  a  suit  in  equity  to  which  she  is  not 
a  party  .  *  *  *  and  a  purchaser  under  such  a  foreclosure 
would  not  obtain  an  unincumbered  title."  Such  a  right, 
although  a  mere  chose  in  action,  and  constituting  no  legal  estate 
in  the  land,  is  nevertheless  one  which  cannot  be  enforced  against 
any  property  other  than  the  land,  and,  when  enforced,  creates 
a  legal  estate  therein  paramount  to  the  right  of  those  holding 
the  legal  title.  A  mortgage  of  such  an  interest  operates  as  a 
conditional  transfer  of  the  right  to  enforce  admeasurement  of 
dower  and  enables  the  mortgagee  to  reduce  to  possession  so 
much  of  the  land  as  is  necessary  to  satisfy  the  requirements  of 
the  mortgage. 

Property  capable  of  being  sold,  transferred,  and  delivered, 
or  charged,  by  means  of  legal  proceedings,  with  the  payment 
of  debts,  is,  we  think,  such  an  interest  as  enables  its  owners, 
within  the  meaning  of  the  statute,  to  create  a  charge  thereon. 
Bouv.  Law  Diet.,  tit.  "Charge;"  Thomas  Mortg.,  §  6rt. 
Although  the  right  of  a  dowre&s  in  lands  before  assignment  is 
not  an  estate,  it  is  nevertheless  a  charge  and  incumbrance  upon 
them,  and  is  capable  of  being  enforced,  and  of  producing  a  legal 
estate.  It  is,  in  that  respect,  similar  to  the  right  which  a  mort- 
gagee has  in  the  lands  mortgaged.  The  interest  of  neither  con- 
stitutes  an  estate  in  lands,  but  both  are  interests  which  may  be 
pledged,  transferred,  or  conveyed  by  any  appropriate  instrument 
evidencing  an  intent  to  so  transfer  them;  and  in  neither  case 
can  the  lands  be  effectually  transferred  by  the  legal  owners,  so 
as  to  free  them,  in  the  hands  of  subsequent  grantees,  from  the 
respective  claims  of  the  dowress  or  mortgagee  or  their  assignees. 
The  real  question  under  the  statute  would  seem  to  be,  whether  the 
mortgagor  had  a  transferable  interest  in  the  mortgaged  prem- 
ises,—  one  which  would  be  available  in  the  hanils  of  her  transferee 
as  security  for  a  del)t.  If  so,  then  her  interest  was  sufficient  to 
bring  her  within  the  reason  and  meaning  of  the  statute.  A  consid- 
eration of  the  object  and  purposes  of  a  statute  affords  the  safest 


458  rowEUS  of  ArroiNTMENT. 

and  most  reliable  guitlc  for  the  ascertiiininoiit  of  its  intent,  and 
of  the  n»caning  and  effect  whicii  .should  he  ascribed  to  it.  In  tiie 
statute  referred  to,  the  revisers  obviously  did  not  attempt  to 
create  or  define  estates  in  land,  but  merely  prescribed  a  rule  of 
construction  for  the  interpretation  of  conveyances  affecting  real 
estate,  which  might  be  executed  under  the  authority  of  a  power. 
It  is  quite  obvious  that  an  interest  possessed  by  a  grantor  in  real 
estate,  whether  legal  or  equitable,  that  is  effectual  to  create  a 
transfer  of  property  is  equally  as  persuasive  as  any  other  in  fur- 
nishing a  motive  or  reason  for  making  or  receiving  a  particular 
conveyance,  and  would  furnish  an  equally  strong  circumstance 
from  which  the  imputation  of  a  legal  intent  might  be  derived. 
Both  equitable  and  legal  interests  in  real  estate  are  valuable,  and 
capable  of  transfer,  and  are  equally  effective  in  determining  the 
intent  with  which  a  particular  conveyance  is  made. 

The  widow  having,  therefore,  an  interest  in  the  land  at  the 
time  of  the  execution  of  the  first  mortgage,  capable  of  being  sold, 
transferred,  and  mortgaged,  aside  from  the  right  to  sell  or  mort- 
gage under  the  power,  her  mortgage  is  not  affected  by  the  statute 
referred  to.  The  contention  that  an  unassigned  right  of  dower 
consummate  is  not  transferable,  comes  with  curious  effect  from  a 
party  presenting  a  record  which  shows  a  decree  in  its  favor 
under  a  mortg-age  authorizing  a  sale  of  this  dower  right  for  the 
satisfaction  of  its  debt.  The  case  or  Marvin  v.  Smith,  46  N.  Y. 
571,  cited  to  show  the  non- assignability  of  a  right  of  dower, 
in  the  court  below,  hardly  supports  the  proposition.  That  case 
holds  only,  that  the  wife's  inchoate  right  of  dower  "  was 
incapable  of  being  transferred  or  released  by  her  during  cover- 
ture, except  to  one  who  already  had,  or  who  by  the  same  instru- 
ment received,  an  independent  interest  in  the  estate  ;  nor  could 
she  bind  herself  personally  by  a  covenant  or  contract  affecting 
her  dower  right."  This  case  proceeded  upon  the  disabilities 
attaching  to  the  state  of  coverture,  and  did  not  affect  the  right 
of  a  widow  to  contract  with  reference  to  or  convey  a  consum- 
mate right  of  dower.  Cases  relating  to  the  question  of  proper 
parties  to  actions  upon  assigned  choses  in  action,  prior  to  the 
adoption  of  the  code,  requiring  them  to  be  brought  in  the  name 
of  the  real  party  in  interest,,  have  no  bearing  u[)on  the  questions 
here  presented,  and  need  not  be  further  considered.  The  order 
of  the  general  terra  should  be  reversed,  and  the  judgment  of  the 
special  term  affirmed,  with  costs  in  the  general  term  and  this 
court  against  the  plaintiff.  All  concur,  except  Earl,  J.,  not 
voting,  and  Peckham,  J.,  not  sitting. 


POWERS    IN    TRUSTS SUPERIOR    SUPERSEDES    MINOR.         459 


Powers  in   Trusts — Superior    Power,    when    Exercised,    Ex- 
hausts or  Supersedes  3Iinor  Powers. 

Boweii  V.  Chase,  94  U.  S.  81  li  (1876). 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  princii)al  objects  of  the  bill  in  this  c;uso,  which  was  filed 
in  the  court  below  by  the  Mp[)cllecs,  Nelson  Chase,  Eliza  .Juinel 
Pery  and  Paul  R.  G.  Perjs  her  hu>band,  and  William  I.  Clia-e, 
were  to  estal)lish  Iheir  title  to  certain  lands  in  the  city  of  New 
York,  known  as  the  Ste[)hen  Juincl  property,  and  to  enjoin 
George  W.  Bowen,  the  appellant,  from  prosecuting  certain 
actions  of  ejectment,  one  brought  by  him  to  recover  certain 
lamls  in  Saratoga,  belonging  to  the  late  Madame  Jumel,  widow 
of  Stephen  Jumel,  and  claimed  by  the  appellees  by  way  of 
satisfaction  for  certain  charges  against  her  estate;,  as  well  as  by 
conveyance  from  her  supposed  heirs,  children  of  a  deceased 
sister.  Stephen  Jumel  was  the  owner  of  a  lot  at  the  corner  of 
Broadway  and  Liberty  streets,  and  of  several  tracts  of  land  on 
Harlem  Heights,  in  the  upper  [)art  of  the  city  of  New  York. 
In  1827  and  1828  by  certain  mesne  conveyances,  the  greater 
portion  of  this  property  was  conveyed  to  one  Michael  Werck- 
meister  ui)on  the  following  trusts,  namely  :  — 

"  In  trust  that  the  said  part  of  the  second  part  (  Werckmeis- 
ter)  and  his  heirs  collect  and  receive  the  rents,  issues  and  profits, 
of  the  said  above  described  and  hereby  conveyed  premises,  and 
every  part  and  parcel  thereof,  and  pay  over  the  same  unto  Eliza 
Brown  Jumel  (the  wife  of  Stephen  Jumel,  late  of  the  city  of 
New  York,  now  of  Paris,  in  France),  or  at  her  election,  sutler  or 
permit  her  to  use,  occupy  and  possess  the  said  premises,  and  to 
have,  take,  collect,  receive,  and  enjoy  the  rents  and  profits  there- 
of, to  and  for  her  own  separate  use  and  benefit,  and  to  and  for 
such  other  uses  and  purposes  as  the  said  Eliza  Brown  Jumel 
shall  please  and  think  fit,  at  her  own  free  will  and  i)leasure  and 
not  subject  to  the  control  or  interference  of  her  present  or  any 
future  husband,  and  the  receipt  and  receipts  of  her,  the  said 
Eliza  Brown  Jumel,  shall  at  all  times  be  good  and  suflScient 
di-charges  for  such  payments,  and  for  such  rents  and  profits  to 
him  the  said  i)arty  of  the  second  part,  his  heirs,  executors  and 
administrators,  and  to  the  person  or  persons  who  are  or  shall  be 
liable  to  pay  the  same  ;  and  upon  this  further  trust,  that  the 
said  party  of  the  second  part  or  his  heirs  may  lease,  demise,  let, 
convey,  assure,  and  dispose  of  all  and  singular  the  said  above 
described  premises,  with  their  and  every  of  their  ai)purtenances, 
to  such  person  or   persons,  for  such  term  or  terms,  on  such  rent 


460  POWERS    OF    APPOINTMENT. 

or  rents,  for  such  price  or  prices,  at  such  time  or  times,  to  such 
uses,  intents  or  purposes,  and  in  such  manner  and  form,  as  she, 
the  said  Eliza  Brown  Juniel,  nothwitlistandini:^  her  present  or  any 
future  coverture,  as  if  she  were  a  feme  sole,  sii.ili,  by  any  in- 
strument in  writing,  executed  in  the  presence  of  any  two  credible 
witnesses,  order,  direct,  limit  or  api)()int ;  and  in  case  of  an 
absolute  sale  of  said  premises  or  of  any  p.iit  thereof,  to  pay 
over  the  purchase  money  to  the  said  Elizi  Brown  Jumel,  or  in- 
vest the  same  as  she  shall  order  and  direct  ;  and  ui)on  this  further 
trust,  upon  the  decease  of  the  said  Eliza  Biown  Jumd,  to  con- 
vey the  said  above-described  premises,  or  such  parts  thereof  as 
shall  not  have  been  previously  conveyed  by  the  said  i)arty  of  the 
second  part  or  his  heirs,  and  with  icspcct  to  which  no  direction 
or  appointment  shall  be  made  l>y  t!i(^  said  Eliza  Biown  Jumel  in 
her  life-time,  to  the  heirs  of  said  Eliza  Biown  Jiimtd  in  fee-simple; 
and  pay  over  to  the  heirs  of  the  said  Eliz  i  Brown  Jumel  such 
moneys  as  shall  remain  in  the  hands  or  under  the  control  of  the 
said  party  of  the  second  part  or  his  heirs,  arising  from  collections 
of  the  rents  and  profits,  or  of  the  proceeds  of  the  sales  of  the 
above-described  premises  or  any  part  thereof." 

On  the  twenty-first  day  of  November,  1828,  the  said  Eliza 
Brown  Jumel,  by  a  deed  duly  executed,  as  required  by  the  trust, 
made  an  appointment  of  all  the  lands  conveyed  in  trust,  in  the 
following  terms,  to  wit :  — 

"  Now,  I,  the  said  Eliza  Brown  Jumel,  do  hereby  deed, 
order,  limit  and  appoint,  that  immediately  after  my  demise, 
the  said  Michael  Werckmeister,  or  his  heirs,  convey  all  and 
singular  the  said  above-described  premises  to  such  person  or 
persons,  and  such  uses  and  purposes,  as  I,  the  said  Eliza  Brown 
Jumel,  shall  by  my  last  will  and  testament,  under  my  hand,  and 
executed  in  the  presence  of  two  or  more  witnesses,  designate 
and  appoint;  and  for  want  thereof,  then  that  he  convey  the 
same  to  my  husband,  Stephen  Jumel,  in  case  he  be  living,  for 
and  during  his  natural  life,  subject  to  an  annuity,  to  be  charged 
thereon  during  his  natural  life,  of  six  hundred  dollars,  payal)le 
to  Mary  Jumel  Bownes,  and  after  the  death  of  my  said  husband 
or  in  case  he  shall  not  survive  me,  then  immediately  after  my 
own  death,  to  her,  the  said  Mary  Jumel  Bownes,  and  her  heirs 
in  fee." 

It  is  on  this  trust  and  appointment  that  the  appellees  rely  as 
the  foundation  of  their  title  to  what  is  generally  known  as  the 
Stephen  Jumel  estate.  Mary  Jumel  Bownes,  the  a[)pointee  of  the 
residuary  estate,  was  the  adopted  daughter  or  protegie  of  Ste- 
phen Jumel  and  Madame  Jumel,  his  wife,  and  the  reputed  niece 
of  the  latter.     In  1832,  Mary  Jumel  Bownes  became  the  wife  of 


POWERS    IN    TRUSTS — SUl'KliloiL  SUPERSEDES  MINOR.         461 

Nelson  Cliiise,  ami  hiul  Uy  him  two  children,  Eh'za  Jiimel  Peiy, 
and  William  I.  Chase,  the  appelieeg  in  the  case.  She  died  in 
1843,  leaving  these  ciiildren  her  sole  hcirs-at-lavv,  in  virtue  of 
which  they  claim  title  to  the  estate. 

The  appellant  claims  to  be  an  illegitimate  son  of  Madame 
Jumel,  born  in  1794,  l)eforo  her  marriage  to  Stephen  Jumel ;  and 
by  virtue  of  that  relationship,  and  of  a  statute  of  New  York, 
passed  in  1S55,  enabling  illegitimate  children  to  inherit  from 
their  mother,  he  claims  to  be  her  sole  heir-at-law.  He  resists  on 
various  grounds  the  claim  of  Mrs.  Chase  and  her  heirs  under  the 
ap[)ointmont.  Firsst,  he  contends  that  Madame  Jumel  took  an 
estate  in  fee  simple  by  virtue  of  the  trust  deed.  But  if  not,  then 
he  contends,  secondly,  that  by  certain  conveyances  and  appoint- 
ments made  by  Madame  Jumel,  under  the  powers  contained  in 
the  trust  deed,  the  appointment  in  favor  of  Mrs.  Chase  was  dis- 
placed and  superseded  by  other  estates  which  inured  to  Madame 
Jumel.  The  conveyances  and  appointments  referred  to  under 
the  second  head  are  the  following :  — 

Firi>t.  A  conveyance  to  Alexander  Hamiliton  by  Werckmeister, 
the  trustee,  at  the  request  and  by  the  appointment  of  Madame 
Jumel,  dated  the  10th  day  of  January,  1834,  of  ninety-four 
acres  of  land  at  Harlem  Heights,  for  the  expressed  consideration 
of  $15,000.  On  the  21st  day  of  October,  in  the  same  year,  this 
property  was  reconveyed  by  Hamilton  to  the  trustee  upon  the 
same  trusts  declared  in  the  original  deed  of  trust.  /Secondly. 
A  conveyance  by  the  trustee,  at  the  instance  and  appointment  of 
Madame  Jnmel,  made  on  the  20th  day  of  August,  1842,  to  one 
Francis  Pliillippon,  of  a  large  portion  of  the  estate,  for  the 
ex{)ressed  condition  of  $100,000;  and  a  reconveyance  of  the 
same  property,  on  the  same  day,  by  Phillipon  to  Madame  Jumel 
in  fee  for  the  expressed  condition  of  one  dollar.  Besides 
these  conveyances,  in  1850,  a  lot  of  thirty-nine  acres,  being  part 
of  the  property  on  Harlem  Heights,  was  sold  and  conveyed  to 
Ambrose  W.  Kmgsland  ;  and  in  1853,  another  lot  of  three  acres 
to  Isaac  P.  Martin,  which  conveyances  are  admitted  to  have  been 
made  to  actual  purchasers  for  valuable  consideration. 

The  effect  of  these  various  deeds  and  conveyances  is  now  to  be 
considered.  And  first,  that  of  the  trust  deeds  executed  to 
Werckmeister  in  1827  and  1828.  There  were  two  of  these 
deeds,  but  the  trusts  in  both  were  precisely  the  same.  The  lim- 
itations of  this  trust  are  very  clear  and  plain,  being  of  a  life 
estate  to  the  separate  use  of  Eliza  Brown  Jumel  (known  as 
Madame  Jumel),  with  a  general  power  of  api)ointment,  during 
her  life  time;  and  on  failure  to  make  such  appointment,  to  her 
heirs  in  fee-simple.     The  counsel  for   appellant  contends  that 


4(J2  POWERS    OF    APrOINTMENT. 

this  trust  Jimountcil  to  a  uso  of  the  lands,  and  that  under  the  old 
statute  of  u-;es  aiid  tiusts,  it  operated  to  vest  the  legal  estate  in 
fee  in  Madame  Jumel.  But  wo  think  the  authorities  are  very 
cle;ir  that,  where  a  trust  is  created  for  the  benefit  of  a  married 
woman,  for  the  })urf)ose  of  giving  her  the  se{)arate  use  and  con- 
trol of  lauds  fiee  from  the  control  of  her  husband,  it  will  be  sus- 
tained; since  to  merge  the  trust  in  the  legal  estate,  or,  to  speak 
miMH^  I)rop('rly,  to  convert  it  into  a  legal  estate,  would  have  the 
effect  of  placing  the  property  in  the  husband's  control  by  virtue 
of  his  marital  rights,  and  would  thus  defeat  the  very  jjurpose  of 
the  trust.  Horton  v.  Horton,  7  T.  R.  053;  Cornish  on  Uses,  59 
Sect.  6;  Rife  V.  George,  59  Penn.  393.  The  legal  effect  of  the 
appointment  made  by  Madjime  Jumel,  November  21,  1828,  we  do 
not  regard  as  any  more  doubtful  than  that  of  the  trust.  It  was 
manifestly  this,  that  sul)ject  to  Madame  Jumel's  right  of  dispos- 
ing of  the  lands  by  will  (which  right  she  reserved)  and  after  ter- 
mination of  her  separate  interest  for  life,  the  equitable  estate  in 
the  lands  was  limited  to  her  husband  for  life,  with  remainder  to 
Mary  Jumel  Bownes  in  fee-simple.  This  is  so  obvious  as  to  re- 
quire no  elaboration  of  argument  or  discussion.  The  interests 
limited  to  Stephen  Jumel  for  life,  and  to  Mary  Jumel  Bownes  in 
fee,  were  immediate  vested  interests,  though  to  take  effect  in  pos- 
session at  a  subsequent  period;  namely  at  the  death  of  Madame 
Jumel,  and  subject  to  be  divested  by  her  reserved  power  of  dis- 
posing of  the  lands  by  will.  The  circumstances  that  the  appoint- 
ment in  their  favor  is,  in  form,  a  direction  to  the  ti  ustee  to  con- 
vey to  them,  does  not  derogate  from  the  vesting  quality  of  their 
equitable  interests  in  the  meantime.  The  conveyance  would  be 
necessary  for  the  purpose  of  clothing  them  with  the  legal  estate. 
Stanley  v.  Stanley,  10  Ves.  507;  Phipps  v.  Ackers,  9  CI.  &  Fin. 
594;  4  Kent's  Comm.  204;  Radford  v.  Willis,  L.  R.  12  Eq.  Cas. 
110;  L.  R.  7  Ch.  App.  11. 

The  effect  of  the  Revised  Statutes  of  New  York  upon  this 
trust  is  next  to  be  considered.  The  chapter  which  contains  the 
article  on  Uses  and  Trusts  (1  Rev.  Stat.  727)  went  into  opera- 
tion on  the  1st  of  January,  1830.  By  this  article  all  passive  trusts 
were  abolished,  and  the  persons  entitled  to  the  actual  possession 
of  lands,  and  to  the  receipts  of  the  rents  and  profits  thereof,  in 
law  or  in  equity,  were  to  be  deemed  to  have  the  legal  estate 
therein  to  the  same  extent  as  their  equitable  estate;  saving, 
however,  the  estates  of  trustees  whose  title  was  not  merely 
nominal,  but  was  connected  with  some  power  of  actual  dispo- 
sition or  management  in  relation  to  the  lands.  Future  trusts 
were  allowed  to  be  created  to  sell  land  for  the  benefit  of  cred- 
itors, or   to  create    charges   thereon,  or   to    receive    rents    and 


POWERS    IN    TRUSTS SUPERIOR    SUPERSEDES    MINOR.        463 

profits  and  apply  them  to  the  use  of  any  person  for  life  or  any 
shorter  term.  In  construing  these  provisions,  the  courts  of 
New  York  have  held  that  a  trust  for  the  use  and  benefit  of  the 
beneficiary,  not  requiring  any  action  or  management  on  the  part 
of  the  trustee,  except,  perhaps,  to  make  conveyances  at  the 
direclion  and  appointment  of  the  beneficiary,  is  not  u  valid  trust 
within  the  statute,  but  inures  as  a  legal  estate  in  the  beneficiary. 
This  we  think  is  the  general  result  of  the  cases.  See  Leggelt  v. 
Perkins,  3  Comst.  297;  Leggett  v.  Hunter,  19  N.  Y.  454; 
Wood  V.  Mather,  38  Barb.  477;  Anderson  v.  Mather,  44  N.  Y. 
257;  Frazer  v.  Western,  1  Barb.  Ch.  238.  In  applying  the 
principle  of  these  cases  to  the  case  before  us,  we  are  met  by  the 
alternative  character  of  the  trust,  namely,  that  the  trustee  shall 
either  collect  and  receive  the  rents  and  profits  and  pay  them 
over  to  Madame  Jumel,  or,  at  her  election  shall  permit  her  to 
use,  occupy  and  possess  the  premises,  and  collect  and  receive 
the  rents  and  profits  to  her  separate  use  ;  and  in  either  case,  to 
convey  as  she  might  direct,  or  to  her  heirs  in  case  no  direction 
be  given.  The  first  of  these  alternatives,  according  to  the  cases, 
would  be  a  valid  trust ;  but  the  second  is  equivalent  to  nothing 
more  than  a  mere  trust  for  her  use  and  benefit.  During  the  life 
of  her  husband  (who  died  in  1832)  it  might  perhaps  be  fairly 
contended  that  the  existence  of  the  legal  estate  in  the  trustee 
was  necessary  to  protect  her  in  the  enjoyment  of  the  property 
as  a  separate  estate  free  from  the  control  of  her  husband.  But 
after  his  death,  the  option  of  managing  the  property  herself 
being  in  her,  and  not  in  the  trustee,  we  are  inclined  to  think 
that  the  trust  became  a  mere  passive  one,  and  that  the 
equitable  estates  were,  by  the  Revised  Statutes,  converted 
into  legal  ones.  This  view  is  corroborated  by  the  opinion 
of  Chancellor  Walworth,  who  had  before  him  some  questions 
concerning  a  portion  of  the  estate  in  1839,  and  who  in  relation 
to  Madame  Jumel's  interest  used  this  language;  "  Her  equita- 
ble interest  therein,  as  cestui  que  trust.,  being  turned  into  a 
legal  estate  by  the  provisions  of  the  Revised  Statutes;  " 
citing  the  section  above  referred  to,  Jumel  v.  Jumel,  7  Paige, 
595.  It  is  true,  as  said  by  the  counsel  for  the  appellees,  that 
the  point  in  question  was  not  necessary  to  the  decision  in  that 
case;  but  the  observation  shows  the  impression  of  an  eminent 
judge,  when  the  very  matter  was  before  his  mind,  and  we  have 
not  been  referred  to  any  New  York  decisions  derogatory  to  this 
view  of  the  case.  However,  the  view  which  we  take  of  this  case 
will  not  render  it  material  whether  the  estates  created  by  the 
trust  and  appointment  became  legal  estates,  or  remained,  as 
they  were   originally,  merely    equitable    in    their  nature.     The 


464  POWERS    OF   ArPOINTMENT. 

more  material  question  is  as  to  the  effect  of  the  conveyances 
made  by  Madame  Jumel,  and  by  the  trustees  in  ol)edience  to 
her  direction  and  ai)[)ointment  subsequent  to  the  death  of  her 
husband. 

We  may  dismiss  the  notion  which  pervades  the  argument  of 
the  counsel  for  ajipellees,  that  these  conveyances  were  a  fraud 
upon  the  appointment  made  in  behalf  of  Mary  Jumel  Bownes 
(or  Mrs.  Chase).  However  proper  that  appointment  may  have 
been,  considering  the  rehitions  wliich  the  appointee  sustained  to 
Mr.  Jumel  and  his  wife,  as  their  adoi)tcd  daughter,  it  was,  never- 
theless, only  a  voluntary  one;  and  the  subsequent  appointments 
can  in  nowise  be  regarded  as  frauds  upon  it.  They  were  or 
they  were  not,  such  appointments  as  Madame  Jumel  still  had 
the  power  to  make,  and  their  effect  is  to  be  judged  of  by  the 
nature  of  her  power  and  by  that  circumstance  alone.  It  is  con- 
tended by  the  counsel  for  the  appellant  that,  where  several  dis- 
tinct powers  are  given  in  the  same  instruments  the  execution  of 
one  of  these  powers  superior  in  dignity  to  others  will  supersede 
and  override  the  latter,  though  executed  first.  This  is,  to  a  cer- 
tain extent,  true,  as  shown  and  explained  by  Mr.  Sugden  in  hia 
work  on  Powers,  in  the  passages  referred  to.  The  execution, 
for  example,  of  a  power  of  sale  will  supersede  all  other  powers, 
for  it  must  necessarily  do  so  in  order  to  have  any  effect.  Mr. 
Sugden,  in  illustrating  the  rule,  says:  — 

**  Thus  a  power  of  sale  must  defeat  every  limitation  of  the 
estate,  whether  created  directly  by  the  deed  or  through  the 
medium  of  a  power,  except  estates  limited  to  persons  standing 
in  the  same  situation  as  the  purchaser,  for  example,  a  lessee; 
for  the  very  object  of  a  power  of  sale  is  to  enable  a  conveyance 
to  a  purchaser  discharged  of  the  uses  of  the  settlement,  and  it  is 
immaterial  whether  any  particular  use  was  really  contained  in 
the  original  settlement,  or  was  introduced  into  it  in  view  of  the 
law  by  the  execution  of  a  power  contained  in  it."  2  Sugd.  on 
Powers,  47,  48  (6th  ed.). 

In  the  present  case  there  was  a  power  to  lease  and  a  power  to 
convey,  assure  and  dispose.  That  the  latter  power  included  a 
power  to  sell  is  not  only  manifest  from  the  words,  but  from  a 
subsequent  passage  of  the  trust,  which  directs  as  to  the  dispo- 
sition of  the  purchase-money  "in  case  of  an  absolute  sale." 
At  the  same  time,  the  words  are  so  general  as  to  authorize  a  dis- 
position in  favor  of  a  volunteer  or  gratuitous  beneficiary.  Here, 
then,  are  really  two  distinct  powers  contained  in  one  clause  ; 
and,  according  to  the  rules  laid  down  by  Mr.  Sugden,  the  power 
to  sell  is  the  superior  power,  and  will  override  the  other  power, 
and  supersede  it  if  previously  exercised.     This  rule  with  regard 


POWERS    IN   TRUSTS SUPERIOR    SUPERSEDES    MINOR.         4G5 

to  the  relative  priority  and  dignity  of  different  powers  in  the 
same  instrument,  though  depending  on  construction  and  the  pre- 
sumed intention  of  the  donor,  is  somewhat  aiuih)gous  to  the  rules 
atlopted  by  the  courts  in  construing  the  act  of  27  Elizabeth, 
representing  fraudulent  conveyances.  It  has  been  invariably 
held  under  that  act,  that  a  conveyance  to  a  purchaser  avoids  all 
prior  voluntary  conveyances  or  two  conveyances  to  purchasers, 
the  fir>t  will  take  the  precedency.  Roberts  on  Fraud.  Conv., 
})p.  33,  641.  So  in  regard  to  double  powers,  a  power  to  sell  or 
exchange,  when  exercised  overrides  all  other  distinct  powers  ; 
for  they  are  necessarily  exclusive  of  all  others;  whereas 
the  uses  appointed  under  other  powers  may  possibly  be 
served  out  of  the  estate  procured  by  the  price  of  the  sale  or 
by  the  exchange.  But  when  a  mere  power  to  convey,  as  dis- 
tinguished from  a  power  to  sell,  is  once  executed  in  favor 
of  a  voluntary  beneficiary,  it  cannot  be  revoked  without  reserv- 
ing a  power  of  revocation,  and  will  not  therefore  bo  super- 
seded by  a  subsequent  conveyance  equally  voluntary  niadeund^r 
the  same  power.  Had  the  transactions  in  question  been  real  and 
effective  sales  to  actual  purchasers  for  valuable  consicKration, 
they  would  undoubtedly  have  superseded  the  voluntary  appoint- 
ment in  favor  of  Mary  Jutnel  Bownes.  The  position  of  the  ap- 
pellees' Counsel,  that  no  sul)sequeut  appointment  could  displace 
this  without  having  expressly  reserved  a  power  of  revocation, 
cannot  be  maintained,  for,  as  we  have  seen,  a  sale  does  have 
that  effect.  There  is  no  doubt  that  the  conveyances  to  Kings- 
laud  and  Martin  were  valid  and  effectual,  and  the  execution  of 
those  conveyances  cannot  be  characterized  as  in  any  manner 
fraudulent.  They  were  conveyances  which  Madame  Jumel, 
under  her  original  power  of  appointment,  had  a  right  to  make, 
notwithstanding  the  previous  ap[)ointment  in  favor  of  her 
ado[)ted  daughter.  But  the  conveyances  made  to  Hamilton  and 
Phillippon  were  of  a  different  character,  and  seem  to 
have  been  intended  merely  as  means  of  restoring  the  prop- 
erty to  its  original  trusts,  or  of  vesting  it  absolutely 
in  Madame  Jumel  herself,  freed  from  the  said  appoint- 
ments. On  this  point  there  can  be  no  dispute,  so  far 
as  regards  the  deed  to  Phillippon.  It  was  a  mere  formal 
conveyance,  made  to  enable  him  to  reconvey  the  property  to 
Madame  Jumel.  As  such  it  was  simply  voluntary,  and  could 
have  no  paramount  effect  over  the  previous  api)ointnient  in  favor 
of  Mary  Jumel  Bownes.  The  conv(;yanco  to  Hamilton  may 
admit  of  more  doubt.  But  looking  at  the  whole  transaction,  the 
conveyance  and  the  reconveyance,  we  cannot  avoid  the  conclu- 
sion that  it  was  intended  as  a  means  of  geltingrid  of  the  former 

30 


4G6  rowER  OF  appointment. 

appointment.  The  conveviinco  by  Hamilton  to  Wcrckmeister 
was  equivalent  to  a  cancellation  of  tlie  pretended  purchase.  It 
w;is  not  a  sale  made  by  Hamilton  to  Wcrckmeister,  nor  a  settle- 
ment made  by  him  for  any  puri)ose8  of  liis  own.  It  was  simply 
a  handing  back  of  the  properly.  In  our  judgment,  therefore, 
the  two  conveyances  amounted  to  a  mere  formal  transfer  and 
retransfer;  and  if  any  sale  was  ever  intended,  it  was  rescind<;d 
by  the  mutual  consent  of  the  parties  to  it.  Wo  are  of  the  opin- 
ion that  this  transaction  did  not,  any  more  than  that  with  Phil- 
lippon,  affect  the  appointment  in  question,  or  the  estate  of 
the  appointee,  whether  that  estate  is  to  be  regarded  as  a  legal  or 
an  equitable  one. 

The  next  question  is  as  to  the  title  of  the  appellees  to  equit- 
able relief  for  protecting  them  in  the  title  which  they  have  thus 
acquired.  Madame  Jumel  died  in  1865;  and  the  appellees  imme- 
diately entered  into  full  possession  of  all  the  property  in  ques- 
tion, both  that  which  was  derived  from  Stephen  Jumel  and  that 
which  is  conceded  to  have  been  the  proper  estate  of  Madame 
Jumel  ;  and  they  have  been  in  possession  ever  since.  The 
appellant,  by  his  several  acti<ms  of  ejectment,  seeks  to  deprive 
them  of  that  possession.  With  regard  to  the  Stephen  Jumel 
property,  the  title  to  which  we  have  been  considering,  and  which 
the  appellees  claim  under  and  by  virtue  of  the  said  trust  and 
appointment,  it  is  apparent  that,  if  the  estate  which  they  thus 
acquired  is  to  be  regarded  as  still  an  equitable  estate,  their  right 
to  the  protection  of  a  court  of  equity  is  undoubted,  no  matter 
where  or  in  whom  the  legal  estate  may  be,  —  whether  in  the 
heirs  of  Wcrckmeister,  the  trustee,  or  in  the  heirs  of  Madam 
Jumel  by  virtue  of  the  conveyances  referred  to.  On  the 
other  hand,  if  by  virtue  of  the  Revised  Statutes  the  equitable 
estate  of  the  appellees  became  converted  into  a  legal  estate, 
they  would  still  have  good  cause  to  Cf)me  into  a  court  of  equity 
for  the  purpose  of  removing  the  cloud  upon  their  title  created 
by  the  subsequent  appointmenta  and  conveyances  to  Hamilton 
and  Phillippon.  These  instruments  on  their  face  purport  to 
be  conveyances  to  purchasers,  setting  forth  pecuniary  consid- 
erations to  a  large  amount,  and,  by  themselves,  would  import 
such  a  disposition  of  the  lands  conveyed  as  would  defeat  the 
appointment  made  in  favor  of  Mrs.  Chase.  It  is  only  by  bring- 
ing them  into  juxtaposition  with  the  sequent  transactions  in 
each  case  respectively,  —  that  is  to  say,  by  the  introduction 
of  supplemental  evidence,  —  that  they  are  shown  to  be  ineffect- 
ive. In  view  of  these  considerations,  and  of  the  fact  that  the 
who\e  title  involves  the  true  construction  of  the  trust  and  the 
power  of  appointment,  and  the  further  fact  that  Madame  Jumel 


POWERS    IN    TRUSTS SUPERIOR    SUPERSEDES    MINOR.         4()7 

was  in  full  possession  of  the  property,  using  and  treating  it  as 
her  own  absolute  estate  until  her  death,  the  appellees  were  per- 
fectly justified  in  coming  into  a  court  of  equity  to  have  these 
conveyances  declared  void.  To  this  extent  we  think  they  are 
entitled  to  a  decree,  including  also  a  decree  for  a  perpetual  in- 
junction against  the  appellant,  prohibiting  him  from  {)rosecutiiig 
any  action  or  suit  for  the  recovery  of  the  lands  embraced  in  the 
ap|)ointment  made  in  favor  of  Mary  Jumcl  Bownes,  by  deed  of 
appointment  executed  by  Eliza  Brown  Jumel,  and  bearing  date 
the  twenty-first  day  of  November,  1828. 

As  to  the  residue  of  the  relief  prayed  for,  namely,  that  the 
appellees  should  have  the  lands  and  real  estate  of  which  Madame 
Jun)el  indisputably  died  seised  in  fee-sim[)lc  appiopiiated  to 
them  in  satisfaction  of  the  supposed  frauds  committed  by  her 
against  the  trust,  and  of  the  engagements  which  she  is  su[)posed 
to  have  made  to  settle  her  estate,  or  a  portion  thereof  upon 
Eliza  Jumel  Chase,  in  consideration  of  her  marriage  with  Mr. 
Pery,  we  are  unable  to  perceive  any  valid  ground  for  granting 
the  prayer  of  the  bill.  If  there  were  no  other  objections  to  the 
decree  sought  in  this  behalf,  we  caimot  agree  with  the  counsel  of 
the  appellees,  that  any  such  fraud  as  is  sujjposed  was  practiced, 
or  if  attempted  that  the  attempt  was  successful;  and  we  fail  to 
see  anything  in  the  proofs  adduced  with  regard  to  the  negotia- 
tions of  the  said  marriage  sufficient  to  sustain  .such  a  decree. 
Nor  do  we  think  that  the  nature  of  the  obligation  created  by  the 
actions  of  ejectment,  the  character  and  amount  of  the  evidence, 
or  the  number  of  writs,  is  such  as  to  lay  the  foundation  for  the 
assumption  of  the  entire  controversy  by  a  court  of  equity.  Sup- 
posing the  relationship  of  the  appellant  to  Madame  Jumel  to  be 
such  as  he  pretends  it  is,  there  does  not  seem  to  be  any  unneces- 
sary multiplication  of  actions.  All  the  property  in  the  city  of 
New  York  is  included  in  one  writ,  and  the  actions  in  Saratoga 
are  brought  against  the  several  teiumts  in  possession.  The 
power  of  the  courts  of  law  to  consolidate  actions  depending  be- 
tween the  same  parties,  and  upon  the  same  questions  in  contro- 
versy, is  probably  sufficient  to  prevent  any  practical  inconve- 
nience not  inherent  in  the  case  itself.  If  the  evidence  is  merely 
voluminous  or  tedious,  that  circumstance  is  not  sufficient  cause 
for  removing  a  case  from  a  court  of  law  to  a  court  of  equity. 

The  claim  made  by  the  appellees  to  lecover  from  the  appellant 
the  sum  of  $2,500,  procured  by  him  by  way  of  compromise  from 
a  grantee  of  Mrs.  Chase  is,  in  our  opinion,  utterly  groundless. 

Decree  reversed,  and  cause  remanded  with  directions  to  enter 
a  decree  in  conformity  with  this  opinion. 


468  INCOKPOREAL  HEREDITAMENTS. 


CHAPTER     XVI. 

INCORPOREAL  HEREDITAMENTS  —  COMMONS  —  EASEMENTS  —  FRAN- 
CHISES—RENTS. 

Pinkum  v.  City  of  Eau  Claire,  81  Wis.  301 ;  51  N.  W.  650. 

Tredwell  v,  luslee,  120  N.  Y.  458;  24  N.  E.  651. 

Cihak  V.  Kleke,  117  111.  643;  7  N.  E.  111. 

Stein  V.  Dahm,  96  Ala.  481 ;   11  So.  597. 

Edgerton  v.  McMullan,  65  Kan.  90;  39  P.  1021. 

Phillips  V.  Sherman,  64  Me.  171. 

Collins  V.  Chartiers  Val.  Gas.  Co.,  131  Pa.  St.  143;   18  A.  1012. 

Fox  V.  Mission  Free  School,  120  Mo.  349;  26  S.  W.  172. 


Easement  in  Gross  —  Express   Grant. 

Pinkum  v.  City  of  Eau  Claire,  81  Wis.  301 ;   51  N.  W.  650, 

Appeal  from  circuit  court,  Eau  Claire  County,  E.  B.  Bundy, 
Judge. 

Suit  in  equity  by  Jolm  P.  Pinlcum  against  the  city  of  Eau 
Claire  to  compel  defendant  to  perform  the  conditions  of  a  deed 
granting  an  easement,  or,  in  the  alternative  to  annul  the  deed, 
and  for  damages  for  failure  to  perform  the  condition.  A  de- 
murrer to  the  complaint  was  overruled,  and  defendant  appeals. 
Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by 
WiNSLOW,    J. 

Appeal  from  an  order  overruling  a  demurrer  to  the  complaint. 
The  complaint  states  that  on  the  16th  day  of  January,  1877,  Ira 
Mead  and  Charles  Bolles  owned  in  fee  lot  2,  in  section  18,  town- 
ship 27,  rnnge  9,  west,  and  on  that  day  made  and  delivered  to 
the  defendant  city  a  deed,  duly  executed  and  acknowledged, 
which  was  accepted  by  the  city,  which  is  set  forth  at  length, 
and  which,  after  certain  recitals,  proceeds  as  follows ;  "Said 
parties  of  the  first  part,  in  cons^ideralion  of  one  dollar  and  other 
valuable  considerations  received,  to  the  full  satisfaction  of  the 
said  party  of  the  second  part,  for  themselves  and  their  heirs  and 
assigns,  doth  covenant  and  agree  with,  grant  and  confirm  unto, 
the  said  party  of  the  second  part,  its  successors  and  assigns, 
that  it  shall  be  lawful  for  the  said  party  of.  the  second  part,  its 
successors  and  assigns,  and  their  respective  tenants,  officers, 
agents,  and  servants,  and  any  other  person  or  persons,  for  the 
benefit  or  advantage  of  the  said  party  of  the  second  part,  or  its 
successors  or  assigns,  at  all  times  freely  to  enter  upon  the  lands 
and  premises  situated  in  the  city  of  Eau  Claire,  in  the  county  of 


EASEMENT    IN    GROSS — EXPRESS    GRANT.  469 

Eau  Claire,  in  said  State,  and  described  as  follows,  to  wit:  Lot 
2  (2),  in  Sec.  eighteen  (18),  towjiship  number  tvventy-sevon 
(27)  north,  of  range  number  nine  (9)  west,  for  the  purpose  of 
constructing,  maintaining,  and  operating  a  canal  or  race-way 
along  and  upon  the  westerly  shore  of  the  Chippewa  river,  as  may 
be  most  practical  and  convenient,  and  a  public  highway  along 
and  contiguous  to  the  westerly  shore  of  said  canal,  not  exceeding 
four  (4)  rods  in  width,  upon  a  strip  of  land  not  exceeding 
eight  (8)  rods  in  width,  adjacent  to  said  Chippewa  river,  fr(»m 
the  southerly  line  or  boundary  of  the  lot  or  parcel  of  land  in 
said  lot  numbered  two, conveyed  by  these  grantors  to  the  grantees 
herein,  of  even  date  herewith,  to  the  southerly  boundary  of  said 
lot  number  two  (2),  of  sufficient  size  and  capacity  to  connect 
the  Chippewa  river  with  Half-Moon  lake,  for  the  purpose  of 
running  and  floating  logs,  timber,  fence-posts,  and  railroad  ties 
into  said  Half-Moon  lake,  and  holding  and  booming  the  same 
therein,  and  for  all  other  and  every  the  uses,  purposes, and  objects 
contemplated,  authorized,  or  required  by  said  several  legislative 
acts.  Also  to  cut  trees  and  timber,  quarry  stone,  and  dig  earth, 
and  remove  and  use  the  same  for  all  and  eveiy  the  uses,  purposes, 
and  ol)jects  aforesaid;  all  the  above-mentioned  rights,  privileges, 
and  easements  hereinbefore  granted  and  vested  in  the  said  party 
of  the  second  part,  its  successors  and  assigns,  to  be  held,  en- 
joyed and  used  in  and  upon  said  strip  of  land  eight  rods  wide, 
and  not  otherwise;  the  westerly  boundary  line  of  said  strip  of 
land  to  be  8  rods  from  and  parallel  to  the  Chippewa  river  at 
high-water  mark  ;  provided,  however,  and  these  presents  are 
upon  these  express  conditions  and  reservations  following,  to  wit : 
That  the  grantee  herein,  its  successors  and  assigns,  shall,  before 
the  water  is  let  into  said  canal  or  race-way  for  the  purpose  of 
operating  and  using  the  same,  as  herein  provided,  construct,  finish 
and  operate  the  said  highway  along  the  westerly  shore  or  side  of 
said  canal  or  race-way  at  least  sixteen  (16)  feet  in  width,  and  so 
that  no  part  of  the  bed  of  the  same  shall  be  over  ten  (10)  feet 
above  the  surface  of  the  water  as  it  may  or  shall  run  in  said 
canal  or  race-way  at  high-water  mark  on  the  Chippewa  river. 
(2)  That  the  grantee  herein,  its  successors  and  assigns,  shall  pay 
all  taxes  of  every  name  and  nature  which  shall  be  lawfully  as- 
sessed upon  the  rights,  privileges  and  easements  herein  granted 
to  them,  and  upon  all  the  works,  erections  and  structures  made 
by  them,  or  any  of  them,  on  said  strip  of  land  for  the  purposes 
aforesaid.  (3)  That  the  grantors  herein  reserve  to  themselves, 
their  heirs  and  assigns,  the  right  and  privilege  at  all  times  to 
cut  trees  and  timber,  quarry  stone  and  dig  earth,  and  remove 
the  same,  from  said  strip  of  land.     (4)  That  the  grantors  here- 


470  INCORPOREAL    HEREDITAMENTS. 

ill  jilso  reserve  to  themselvis  and  their  heirs  and  assigns  all  tlio 
stone  which  m:iy  be  dug,  quarried  or  l)lasted  by  I  ho  grantee 
herein,  its  successors  and  assigns,  in  the  construction  and  com- 
pletion of  any  of  the  works,  and  not  needed  or  nsed  by  them,  or 
any  of  iheni,  for  the  uses,  puri)oses,  and  objects  conteni[)lated, 
authorized,  or  required  by  said  several  legislative  acts,  and  in  the 
construction,  completion,  maintenance,  and  operation  of  said 
canal  or  race-way.  (5)  That  none  of  tlie  rights,  privileges,  and 
easements  herein  granted  to  the  said  grantee,  its  executors,  suc- 
cessors, and  assigns,  shall  be  enjoyed  by  them,  or  any  of  them, 
beyond  the  boundary  or  limits  of  said  strip  of  land  eight  rods  in 
width,  herein  described.  (6)  That  the  said  canal  or  race-way, 
and  the  highway  and  other  works  hereinbefore  mentioned,  shall 
bo  fully  constructed  and  completed  within  the  i)eriod  of  live  years 
from  the  date  of  these  presents.  To  have  and  to  hold  the  above- 
granted  rights,  privileges,  and  easements  in  and  to  the  lands  and 
premises  aforesaid,  and  every  of  them,  unto, the  said  parties  of 
the  second  part,  their  successors  and  assigns,  to  their  own  proper 
use  and  benefit  forever,  for  all  and  every  the  uses  and  purposes 
aforesaid,  and  for  no  other  use  and  pur[)ose  whatsoever,  subject, 
however,  to  ail  the  aforesaid  exceptions,  conditions,  and  reserva- 
tions ;  provided,  always,  and  these  presents  aie  upon  the  express 
condition,  that  if  at  any  time  the  above-mentioned  contem[)lated 
works  shall  cease  to  be  maintained  and  operated  for  the  purposes 
contemplated,  required,  and  authorized  by  said  several  legislative 
acts,  the  covenants,  agreements,  and  graiils  herein  contained,  and 
these  presents,  shall  cease,  and  become  null  and  void  for  every 
purpose  whatsover." 

The  complaint  further  proceeds  as  follows:  "  That  immedi- 
ately thereafter  the  said  defendant  entered  upon  said  lands  so 
described,  and  did  build  and  construct  its  dam,  and  build  its 
race-way,  and  let  the  water  therein,  built  the  other  works  in  con- 
nection therewith,  and  did  use  and  appropriate  to  itself  the  full 
use  and  possession  of  that  part  of  said  lot  two  (2)  so  conveyed, 
and  all  the  rights,  privileges  and  easements  therein  granted; 
and  ever  since  said  time  has  maintained  and  used  said  premises, 
and  been  in  the  exercise  of  the  full  use  and  enjoyment  of  all 
said  rights,  privileges,  and  easements.  And  the  plaintiff  further 
shows  that  all  the  rights,  considerations,  covenants,  and  condi- 
tions in  said  lease  which  were  by  its  terms  to  be  performed  by 
the  said  defendant,  and  the  full  use  and  benefit  thereof,  and  the 
right  to  recover  for  the  same  and  to  enforce  performance 
thereof,  was,  on  the  5th  day  of  January,  1880,  duly  assigned, 
transferred  and  sold  to  this  plaintiff  for  a  valuable  con- 
sideration    by    the  said     Mead    and     Bolies,     and  the  said    lot 


EASEMENT  IN  GROSS EXPRESS  GRANT.  471 

two  duly  conveyed  to  the  plaintiff  by  said  Mead  and  Bolles  and 
their  wives,  respectively.  And  the  plaintiff  further  shows  that 
the  said  defendant  has  wholly  neglected,  failed  and  refused  to 
perform  any  of  the  conditions,  or  covenants  expressed  in  said 
deed  on  its  part  to  be  performed  as  a  consideration  for  said 
grant,  and  specially  failed  and  neglected  to  construct  or  operate 
the  highway  along  the  westerly  shore  of  the  canal,  therein  de- 
scribed, which  was  the  consideration  for  such  gi'ant.  That  the 
banks  of  said  lot  two,  from  the  Chippewa  river,  were  at  the 
times  mentioned,  and  now  are,  very  steep,  —  almost  perpendi<u- 
lar,  —  to  a  length  of  about  one  thousand  three  hundred  and 
twenty  feet,  and  consist  of  a  rocky  ledge  of  sandstone.  That 
such  ledge  at  that  time,  and  continuously  since,  was  of  great 
value  as  a  stone  quarry;  the  stone  therein  being  of  exceptionally 
good  quality  for  building  purposes,  and  superior  to  the  stone  in 
most  other  quarries  adjacent  to  Eau  Claire.  That,  in  order  to 
work  said  quarry  successfully,  it  was  necessary  that  the  roadway 
mentioned  in  said  deed  should  be  constructed  ;  and  on  account 
of  the  height  of  the  banks,  and  they  being  of  solid  stone,  the 
expense  of  constructing  such  a  highway  was  very  large,  —  at 
least  eight  thousand  dollars  ;  and  to  secure  such  highway  was  the 
chief  and  only  purpose  of  the  grant  from  Mead  and  Bolles  to  the 
defendant,  on  their  part;  and  such  condition,  being  attached  to 
the  grant,  was  the  sole  consideration  of  the  purchase  of  the  land 
and  the  rights  on  the  premises  from  Mead  and  Bolles  by  the 
plaintiff.  That  by  means  of  said  highway  large  quantities  of 
valuable  stone  could  have  been  quarried,  for  which  there  then 
was,  and  ever  since  has  been,  a  ready  sale  in  the  city  of  Eau 
Claiie,  within  which  said  quarry  is  located,  at  large  pro6ts  over 
and  above  the  cost  of  quarrying  the  same.  And  that,  by  reason 
of  the  neglect  and  refusal  of  the  defendant  to  construct  and 
maintain  such  highway  as  it  is  stipulated  and  agreed,  the  plain- 
tiff has  been  unable  to  work  such  quarry,  has  been  deprived 
wholly  of  its  use,  and  suffered  the  loss  of  the  profit  which  he 
would  have  made  had  the  road  been  so  constructed  and  main- 
tained, which  profit  would  not  have  been  less  than  five  hundred 
dollars  for  each  and  every  year  he  could  have  worked  said 
quarry  by  means  of  access  thereto  and  therefrom  by  said  high- 
way ;  and  he  has  sustained  damage  in  said  sum  each  such  yeai-, 
amounting  in  the  aggregate  to  the  sum  of  seven  thousand 
dollars." 

The  complaint  also  alleges  the  delivery  to  the  city  on  the  28th 
of  April,  1890,  of  a  notice  and  demtind  that  the  city  immedi- 
ately perform  the  conditions  of  said  deed,  and  pay  to  the 
plaintiff  the  damages  he  has  sustained  by  reason  of  the  non-per- 


4  72  INCORPOREAL    HEREDITAMENTS. 

foriiiancc  thereof,  alleged  to  be  $500  per  year  ;  but  that  the  city 
has  not  complied  with  the  demaud,  or  taken  any  action  towards 
conipl}  ing  with  the  same. 

The  prayer  for  judgment  ia  as  follows:  "Wherefore  the 
plaintiff  prays  for  the  decree  of  this  court,  that  the  said  defend- 
ant be  commanded  to  immediately  construct  and  maintain  such 
highway,  and  pay  to  the  plaintiff  the  damages  he  has  sustained 
by  reason  of  not  having  constructed  the  same  at  the  lime  and  in 
the  mnnncr  conditioned  in  said  grant  from  Mead  and  Bolles  to 
it;  and  that  in  case  of  default  in  so  doing  after  such  a  decree, 
that  the  said  deed  and  grant  to  be  decreed  annulled,  vacated, 
and  set  aside,  and  the  plaintiff  to  be  decreed  to  hold  the  title  to 
said  lot  two  (2)  free  and  clear  from  any  cloud  created  by  the 
same.  That  the  defendant  deliver  up  possession  of  that  part 
of  said  lot  which  it  occupied  under  said  grant,  and  remove  all 
obstructions  or  encroachments  it  has  placed  and  now  maintains 
upon  the  same;  and  that  it  be  decreed  to  pay  the  damages 
heretofore  sustained,  and  for  such  other  and  further  relief  in 
the  premises  as  may  be  proper  and  agreeable  to  equity,  and  that 
the  plaintiff  have  judgment  for  his  costs  and  disbursements  of 
this  action." 

The  grounds  of  the  demurrer  are  as  follows:  "  (1)  That  the 
plaintiff  has  not  legal  capacity  to  sue,  such  defect  consisting  in 
the  fact  that  the  plaintiff  is  suing  in  the  pretended  capacity  of 
the  assignee  of  the  i)retended  causes  of  action  in  the  complaint 
set  forth  and  as  such  assignee  has  no  lawful  right  to  maintain 
such  action.  (2)  That  several  causes  of  action  have  been  im- 
properly united  in  said  complaint.  (3)  That  the  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  (4) 
That  the  said  action  was  not  commenced  within  the  time  limited 
by  law  ;  and  in  regard  to  said  fourth  objection  the  defendant 
refers  to  the  following  statutes,  which  are  claimed  by  it  to  limit 
the  plaintiff's  right  to  sue:  Firsts  section  4216,  Rev.  St.  Wis.; 
sfcond,  subdivision  4,  §  4221,  Rev.  St.  ;  thirds  subdivisions  3,  5, 
§  4222,  Rev.  St. 

WiNSLOw,  J.  i^after  stating  the  facts).  The  deed  set  forth 
in  the  complaint  undoubtedly  granted  to  the  city  an  easement 
over  the  lands  described  in  the  deed  for  the  purposes  set  forth 
therein.  It  was  an  easement  in  gross,  because  it  does  not  appear 
to  be  appurtenant  to  any  estate  in  land,  and  it  was  upon  condi- 
tion. Whether  the  condition  was  precedent  or  subsequent  is  not 
necessary  to  be  decided  upon  this  appeal,  and  is  not  decided. 
The  easement  was  also  in  perpetuity.  That  an  easement  may 
be  created  in  fee  is  well  settled.  The  fee  of  land  may  be  in  one 
person,  and  the  fee  of  aq  easement  upon  such  land  in  another. 


EASEMENT    IN    GROSS —  EXPRESS    GRANT.  473 

2  Bl.  Comm.,  c.  7,  pp.  106,  107;  Story  v.  Railroad  Co.,  90  N. 
Y.  122,  158;  Child  v.  Chappell,  9  N.  Y.  255;  Nellis  v.  Munson, 
108  N.  Y.  453;  15  N.  E.  Rep.  739.  Technically,  an  easement 
in  fee  must  be  appurtenant  to  land  ;  and  consequently,  the  ease- 
ment here  created,  being  in  gross,  is  not  strictly  an  easement  in 
fee,  but,  being  granted  to  the  city,  '*  its  successors  and  assigns," 
it  is  capable  of  assignment,  and  is  therefore  undoubtedly  in  per- 
petuity, though  not  technically  in  fee.  Poull  v.  Mockley,  33 
Wis.  482.  The  difference  is  purely  technical,  and  does  not 
affect  any  substantial  right  in  this  case.  Therefore,  when 
this  deed  was  executed  and  delivered,  the  fee  of  the  land 
remiiined  in  the  grantors.  Mead  and  Bolles,  subject  to  the 
conditional  easement  in  perpetuity  created  by  the  deed. 
Being  the  owners  in  fee  of  the  land,  they  could,  of  course, 
convey  it  to  another  ;  and  their  grantee  would  stand  in  their 
shoes.  Why,  then,  cannot  such  grantee  bring  an  action 
against  one  claiming  an  easement  on  condition  to  take  advantage 
of  condition  broken  or  enforce  its  performance  ?  It  is  said  that  he 
cannot  because  of  the  long-settled  common-law  principle  that  a 
condition  in  a  deed  can  only  be  reserved  to  the  grantor  or  his 
heirs,  and  not  to  a  stranger.  This  rule  applies  to  land  conveyed 
upon  condition  subsequent,  and  the  reason  of  the  rule  is  that  the 
estate  is  not  defeated,  though  the  condition  be  broken,  until  entry 
by  the  grantor  or  his  heirs,  and  there  is  nothing  to  assign  save  a 
mere  right  of  entry,  which  at  common  law  is  not  assignable. 
Nicoll  V.  Railroad  Co.,  12  Barb.  460;  12  N.  Y.  21 ;  1  Greenl. 
Cruise,  tit.  13,  c.  1,  §  15.  No  such  rule  can  apply  here,  because 
the  reason  does  not  exist.  In  this  case  the  plaintiff  does  not 
claim  as  the  assignee  of  a  mere  right  of  action  or  right  of  entry 
on  land,  but  he  claims  as  owner  in  fee  of  land  burdened  with  an 
easement  granted  upon  condition,  which  condition  is  alleged  to 
have  been  broken.  It  would  be  a  singular  rule  of  law  which 
would  forever  prevent  the  owner  in  fee  of  lands  from  question- 
ing the  right  of  another  to  maintain  an  easemen.t  upon  his  land, 
when  there  existed  a  violation  of  the  express  condition  upon 
which  the  easement  was  granted.     No  such  rule  exists. 

It  is  claimed  by  the  appellant  that  the  condition  in 
the  deed  that  the  city  shall  build  a  highway  is  void, 
because  it  appears  that  the  building  of  such  highway 
would  involve  an  expense  of  some  $8,000,  and  the  complaint  does 
not  allege  that  any  action  was  ever  taken  by  the  common  coun- 
cil of  the  defendant  city  agreeing  to  the  condition,  or  promising 
to  perform  it,  and  the  city  charter  containing  a  provision  that 
no  debt  shall  be  created  or  liability  incurred  by  the  city  except 
by  a  vote  of  a  majority  of  the  members  of  the  council.     Hence 


474  INCORPOREAL    HKREDITAMENTS. 

it  is  argued  that  the  condition  in  the  deed  was  and  is  void,  and 
that  the  title  to  the  easement  vested  in  the  city  without  perlorin- 
anco  of  the  condition.  In  reference  to  this  and  kindred  objec- 
tions, it  is  sufficient  to  say  that  the  comphiint  alleges  substantially 
that  the  city  made  and  entered  into  this  agreement  and  purchased 
and  received  the  deed  of  the  property  in  issue  upon  the  terms, 
conditions,  and  reservations  expressed  in  the  deed.  Upon 
demurrer  this  must  bo  construed  as  meaning  that  such  steps 
were  taken  as  were  legally  necessary  to  make  the  conditions  of 
the  deed  effectual. 

It  is  further  objected  by  the  appellant  that  an  action  in  equity 
will  not  lie,  because  the  plaintiff  has  an  adequate  remedy  at 
law  by  an  action  in  ejectment.  Neither  is  this  objection  well 
taken.  Ejectment  is  not  the  appropriate  remedy  for  the  recov- 
ery of  a  mere  easement.  Child  v.  Chappell,  9  N.  Y.  24G;  Strong 
V.  Brooklyn,  68N.  Y.  10;  Washb.  E.isem.  (4th Ed.),  p.  740.  In 
this  connection,  see  also,  City  of  Racine  v.  Crotsenberg,  61  Wis. 
481  ;  21  N.  W.  Rep.  520.  "it  is  true  that  in  Lawe  v.  City  of 
Kaukauna,  70  Wis.  306;  35  N.  W.  Rep.  561,  ejectment  was 
maintained  against  a  city  for  property  which  was  claimed  by 
the  city  as  a  highway  or  approach  to  a  l)ridge.  The  case  shows, 
however,  that  permanent  walls  and  abutments  had  been  built 
upon  the  property,  and  that  the  bridge,  when  closed,  rested  par- 
tially thereon,  so  that  it  was  in  fact  permanently  occupied. 
Furthermore,  no  objection  was  taken  in  that  case  that  the  proper 
remedy  was  in  equity.  That  question  was  not  raised,  and  hence 
not  decided.  The  case  is  not  authority  against  the  doctrine  that 
the  proper  remedy  here  is  in  equity. 

The  claim  that  the  complaint  shows  adverse  possession  by 
defendant  for  more  than  10  years  is  not  tenable.  It  simply 
shows  such  possession  as  is  necessary  to  the  full  enjoyment  of  the 
easement.  Such  possession  is  not  adverse  to  the  owner  of  the 
land.  The  character  of  the  possession  is  determined  by  the 
character  of  the  claim  under  which  possession  is  taken  and  held. 
The  claim  is  only  of  an  easement. 

The  objection  that  the  complaint  improperly  joins  two  causes 
of  action — one  for  damaues  at  law,  and  one  for  equitable 
relief — cannot  prevail.  It  being  settled  that  equity  has  jurisdic- 
tion to  entertain  the  action  for  the  purposes  of  determining  the 
rights  of  the  parties  with  regard  to  the  easement,  it  will,  on 
familiar  principles,  take  cognizance  of  the  controversy  in  all  its 
branches,  and  settle  the  rights  of  the  parties  by  a  single  decree, 
thus  saving  multiplicity  of  suits.     Turner  v.  Pierce,  34  Wis.  658. 

It  is  said  that  the  claim  for  money  damages  is  barred  by  a 
provision    of  the    charter  of    the  defendant  city  which  was  in 


EASEMENT    IN    GROSS  —  EXPRESS    GRANT.  475 

force  prior  to  passage  of  chapter  184  of  the  Laws  of  1889,  as 
follows:  "No  action  sliall  be  maintained  by  any  person  against 
the  city  of  Eiu  Clairo  up^n  any  claim  or  demand  until  such  per- 
son shall  first  have  presented  his  claim  or  demand  to  the  common 
coMDcil  for  allowance,  and  allowance  thereof  refused  by  said 
council."  What  effect  this  provision  may  have  upon  the  claim 
for  damages  is  not  necessary  to  be  determined.  It  plainly  is 
inapplical)le  to  an  action  for  equitable  relief,  and  hence  cannot 
serve  as  ground  for  demurrer  to  the  entire  complaint. 

The  levised  charter  of  the  city  (chapter  184,  Laws  1889)  also 
contains  the  following  provisions,  which  are  relied  upon  to 
defeat  this  action:  "  Sec.  22.  No  suit  of  any  kind,  or  any  claim 
or  cause  of  action,  either  ex  contractu  or  ex  delicto^  shall  be 
brought  against  said  city,  but  the  claimant  shall  file  his  claim 
with  the  city  clerk,  for  the  action  of  the  common  council  there- 
on ;  and,  if  he  feels  aggrieved  by  their  determination,  he  may 
appeal  to  the  circuit  court,  in  the  manner  hereinalter  provided. 
If  the  council  neglects  to  take  final  action,  within  sixty  days 
after  the  same  is  filed,  the  same,  for  the  purposes  of  an  appeal 
by  the  claimant,  may  be  taken  as  disallowed.  In  case  an 
appeal  is  taken,  the  city  clerk  shall  immediately  notify  the 
city  attorney,  and  shall  make  and  deliver  to  him  a  copy 
of  all  papers  and  j)roeeedings  relating  to  the  matter  in  his 
possession.  He  shall  notify  the  common  council  of  such 
appeal  at  its  next  meeting;  and  no  appeal  shall  be  taken, 
entertained  or  allowed,  fioin  the  determination  of  such  council, 
unless  the  cause  of  action  accrued  within  six  months  imme- 
diately prior  to  the  time  when  such  claimant  shall  have  filed 
his  said  claim  with  the  clerk  as  aforesaid.  Sec.  23.  The 
determination  of  the  common  council,  disallowing  in  whole  or 
in  part  any  claim  or  causes  of  action  of  any  person,  company, 
or  corporatiim  shall  be  final  and  conclusive,  and  a  perpetual 
bar  to  any  action  in  any  court  founded  on  such  claim,  unless 
such  person,  persons,  company,  or  corporation  shall  appeal  from 
such  action  disallowing  the  same  to  the  circuit  court  as  provided 
in  this  chapter."  These  provisions  if  applicable  to  such  an 
action  as  this,  would,  by  their  terms,  absolutely  bar  this  action 
immediately  upon  the  passage  of  the  act,  because  the  cause  of 
action  accrued  more  than  six  months  before  the  claim  could  be 
filed  with  the  city  clerk;  hence  no  appeal  could  be  taken  from  a 
disallowance  by  the  council,  and  that  determination  would  be 
final  and  conclusive.  Thus  the  right  of  action  is  absolutely  cut 
off  at  once,  and  without  giving  any  time  to  prosecute.  This 
cannot  be  done,  under  well  established  orinciples.  Arimond  v. 
Canal  Co.,  31  Wis.  316. 


476  INCORPOREAL    HEREDITAMENTS. 

The  final  objection  taken  is  that  this  action  is  barred  by  the 
statute  of  limitations.  Rev.  St.,  par.  4,  §  4221.  The  deed  was 
given  in  January,  1877.  By  its  express  provisions  the  city  had 
five  years  in  which  to  complete  the  canal  and  highway,  so 
that  it  would  seem  that  the  cause  of  action  did  not  accrue 
until  January,  1882,  which  is  less  than  10  years  before  the 
commencement  of  this  action,  and  consequently  the  action  is  not 
barred  by  the  statute  last  named,  which  fixes  the  period  at  ten 
years. 

It  is  unnecessary  to  discuss  the  question  as  to  what  precise 
form  of  relief  the  plaintiff  will  be  entitled  to  if  he  substantiates 
his  complaint  upon  the  trial.  He  may  not  be  entitled  to  all  that 
he  has  prayed  in  his  complaint,  nor  perhaps  in  that  form,  but 
that  he  will  be  entitled  to  some  remedy  we  cannot  doubt.  Order 
affirmed. 

Easement  by  Prescription  —  Equitable  Easement. 

Tredwell  v.  Inslee,  120  N.  Y.  458;  24  N.  E.  651. 

Appeal  from  an  order  of  the  general  term  of  the  third  judicial 
department,  which  reversed  a  judgment  entered  upon  the  decis- 
ion of  the  special  term,  and  granted  a  now  trial. 

This  action  was  brought  by  the  plaintiff's  testator  to  restrain 
the  defendant's  testator  from  interfering  with  a  drain  running 
from  the  plaintiff's  premises  across  the  defendant's  premises, 
and  to  compel  him  (defendant's  testati)r)  to  restore  the  portion 
of  the  drain  which  he  had  destroyed.  Prior  to  October  14, 
1845,  Piatt  Williams  was  the  owner  of  four  lots  of  land  on 
Patroon  street,  now  Clinton  avenue,  in  the  city  of  Albany,  and  of 

nd  adjoining  said  lots  on  the  south,  and  fronting  on  Orange 
rtreei.  On  the  date  last  named,  said  Williams  and  wife  convej'ed 
■  to  one  Davidson  the  lot  owned  by  the  defendant,  and  thereafter 
said  lot,  by  several  mesne  conveyances,  was  conveyed  to  John 
Reid,  the  defendant's  testator.  Said  Reid  became  the  owner  in 
Mav,  1873.  None  of  said  deeds  contained  any  reservation  of 
the  use  of  any  drain,  or  of  any  right  or  privilege  of  drainage, 
through  or  across  said  lot.  The  deed  to  Davidson  did,  however, 
convey  the  right  to  "  the  use  of  a  drain  in  the  rear  of  said 
premises,  leading  from  thence  through  another  lot  of  said  party 
of  the  first  part  (Williams)  to  a  public  drain  in  Orange  street," 
and  said  right  of  drainage  was  by  several  mesne  conveyances  of 
said  lot  conveyed  to  said  Reid.  On  November  20,  1849,  said 
Williams  and  wife  conveyed  to  one  Charles  C.  Vail  two  plots  of 
ground  on  Patroon  street,  one  lying  easterly  and  one  westerly  of 
the  lot  conveyed  to  Davidson,  the  latter  of  which  two  plots  of 


EASEMENT    BY    PRESCRIPTION  —  EQUITABLE  EASEMENT.       477 

land  included  the  lot  now  owned  by  the  plaintiff.  The  deed  to 
Vail  made  no  mention  of  any  right  of  drainage,  or  of  any  right 
to  nso  any  drain  througii  or  across  the  defendant's  lot.  On  De- 
cember 2,  1851,  said  Vail  couviyed  the  lot  now  owned  by  the 
plaintiff  to  one  William  Rennie,  and  by  several  mesne  convey- 
ances the  title  thereto  was,  prior  to  September  4,  1860,  vested 
in  James  Vane,  who,  on  said  date,  conveyed  the  same  to  plain- 
tiff's testator.  The  deed  from  Vail  to  Rennie  purported  to 
convey  "  the  free  and  uninterrupted  use  of  a  drain  in  com- 
mon with  the  other  owners,"  and  such  right  is  expressed  as 
being  conveyed,  in  all  subsequent  deeds  of  the  lot,  to  and  in- 
cluding the  deed  from  Vane  to  the  plaintiff's  testator.  When 
plaintiff's  testator  became  the  owner  of  said  lot  there  existed  a 
drain  which  ran  therefrom  across  an  intervening  lot,  and  across 
the  defendant's  lot,  to  the  lot  of  one  George  Carroll,  which  is 
next  east  of  defendant,  and  then  entered  a  drain  running  south- 
erly across  a  lot  owned  by  one  Flood  to  Orange  street,  which 
then  and  for  sometime  thereafter  was  used  to  drain  the  plaintiff"'s 
lot.  In  May,  1885,  the  said  drain  was  discovered  l>y  plaintiff's 
testator  to  have  been  cut  off  and  stopped  up  with  clay,  upon 
defendant's  lot.  Flood  derived  the  title  to  his  lot  from  Williams, 
and  the  conveyance  to  him  in  October,  1853,  was  *'  subject  to  a 
certain  right  of  drainage  or  sewerage  from  four  certain  lots 
heretofore  sold,  and  conveyed  by  party  of  the  first  part  (Will- 
iams), and  lying  on  Patroon  street,  through  a  drain  or  sewer 
heretofore  constructed  in  and  upon  said  lot  hereby  conveyed, 
and  this  right  is  hereby  reserved;  the  party  of  the  second  part, 
his  heirs  and  assigns,  being  hereby  bound  to  keep  in  repair  that 
part  of  said  drain  or  sewer,  as  it  now  exists,  which  runs  through 
the  lot  hereby  conveyed."  The  trial  court  found  that,  by  the 
deed  from  Vane  and  wife,  the  plaintiff's  testator  became  the 
owner  of  a  right  of  drainage  across  the  defendant's  lot,  and 
thence  across  the  lot  on  the  east,  to  a  drain  running  southerly  to 
Orange  street;  that  the  defendant's  testator  held  his  lot  subject 
to  such  right  of  drainage,  and  became  the  owner  of  said  lot, 
with  due  notice  of  said  right;  that  the  plaintiff  had,  prior  to 
May,  1885,  used  and  enjoyed  said  right  of  drainage  for  more 
than  20  years  ;  that  the  drain  from  plaintiff's  lot  through  de- 
fendant's lot,  and  thence  to  Orange  street,  was  the  one  referred 
to  in  the  deed  from  Williams  to  Davidson;  and  that  defendant 
and  his  grantors  were  made  acquainted  with  the  condition  of  the 
lots  in  reference  to  the  drain  by  the  deed  of  Williams  to  David- 
son, and  took  title  with  notice  and  knowledge  of  the  changed 
condition  of  the  lots  as  related  to  the  drain.  Further  facts  ap- 
pear in  the  opinion. 


478  INCORPORKAfi    HEREDITAMENTS. 

Brown,  J.  (afhr  slating  the  fcuAs  an  above).  The  finding  of 
the  special  term  that  the  phiintiff's  testator  became  the  owner  of 
a  right  of  drainage  across  the  defendant's  lot  by  the  deed  from 
Vane  and  wife  cannot  be  sustained.  The  earliest  conveyance  by 
Williams  of  any  of  the  property  affected  b}'  the  drain  in  question 
was  of  defendant's  lot  to  Davidson,  in  1845.  That  conveyance 
contained  no  reseivatiou  of  the  use  of  any  drain  for  the  benefit 
of  the  lots  lying  west  of  it,  and  it  cut  off  all  such  right  from  any 
lots  subsequently  conveyed  by  Williams.  Williams  continued 
to  own  the  plaiiititl''s  lot  until  November,  1849,  and  his  convey- 
ance of  that  lot  in  that  month  to  Vail  did  not  purport  to  convey 
any  right  to  the  use  of  the  drain.  Whether  or  not  the  drain 
existed  at  that  time  does  not  appear  in  the  evidence,  and  is 
not  important  or  material,  in  view  of  the  fact  that  the 
right  to  use  it  was  neither  reserved  in  the  deed  to  David- 
son nor  conveyed  in  the  deed  to  Vail.  The  earliest  men- 
tion of  a  drain  in  connection  with  plaintiff's  property  is  in 
the  deed  from  Vail  to  Rennie,  in  1851.  That  deed  did  not 
locate  it  or  describe  it  as  running  across  defendant's  lot.  The 
right  to  use  such  was  conveyed  to  Vane,  and  he  conveyed  it  to 
the  plaintiff's  testator  in  1860.  No  deed  from  any  owner  of  de- 
fendant's lot  prior  to  1860  is  proven,  conveying  any  such  right, 
and  it  is  ap^iarent  at  that  date  no  title  by  user  could  have  been 
acquired  by  the  owner  of  plaintiff's  lot.  The  finding  quoted, 
therefore,  appears  to  be  without  any  evidence  to  sustain  it.  The 
right  to  the  use  of  the  drain  for  the  benefit  of  the  plaintiff's  lot 
(if  such  CMu  be  sustained)  does  not  rest  upon  a  conversance 
thereof,  but  upon  a  title  obtained  by  a  use  adverse  to  the  defend- 
ant. The  special  terra  found  as  a  fact  that  prior  to  May,  1885, 
when  the  i)laintiff's  testator  first  discovered  that  the  drain  was 
cut  otf,  he  had  used  and  enjoyed  such  right  of  drainage  for  more 
than  twenty  years  under  claim  of  right.  If  that  finding  can  be 
sustained,  it  is  not  disputed  that  the  judgment  of  the  special 
term  was  right,  and  the  only  question  necessary  to  be  considered 
upon  this  appeal  is  whether  such  finding  has  evidence  to 
support  it.  The  conveyance  to  Munsion,  piaintiff''s  testa- 
tor, was  in  September,  1860.  He  testified  that  he  first 
knew  of  the  drain  when  he  took  possession  of  the  property  ; 
that  it  commenced  at  his  house,  ran  southerly  to  the  rear  of 
the  lot,  thence  easterly  across  the  defendant's  lot  to  the  lot 
of  George  Carrol,  where  it;  entered  the  sewer,  leading  south- 
erly to  Grange  street.  That  is  the  earliest  date  at  which  the 
evidence  fixes  the  existence  of  the  drain  across  defendant's  lot, 
and  there  is  no  evidence  that  at  that  time  its  existence  was 
known  to  the  owner  of  that  lot.     John  Reid,  defendant's  testa- 


EASEMENT    BY    PHESCRIPTION  — EQUITABLK    EASEMENT.      479 

tor,  purchased  the  lot  in  May,  1873.  Mansion  testified  that  in 
1875  he  paid  five  doHars  to  John  Reid's  brother,  for  repairing 
the  coinnion  sewer  running  across  Flood's  h)t  to  Orange  street; 
and  as-uming  that  John  Reid  was  cognizant  of  that  payment  and 
that  it  permits  an  inference  that  he  must  then  have  known  that 
the  drain  from  phiintiff's  lot  to  the  common  sewer  crossed  his 
property,  that  is  the  earliest  date  at  which  the  evidence  charges 
him  with  knowledge  of  the  fact. 

These  facts  do  not  estal)lish  an  adverse  user.  To  establish  an 
easement  in  the  land  of  another  by  prescription  or  adverse  use, 
it  is  essential  that  the  use  and  claim  of  right  be  actually  known 
by  the  person  against  whom  the  adverse  user  is  claimed,  or  it 
must  be  so  visible,  open,  or  notorious  as  that  knowledge  of  such 
use  or  claim  will  be  presumed.  Ward  v.  Warren,  82  N.  Y. 
265;  Parker  v.  Foote,  19  Wend.  309-311;  Nicholls  v.  Went- 
worth,  100  N.  Y.  455  ;  3  N.  E.  Rep.  482;  Washb.  Easem.  (3d 
Ed.)  160;  Hannefin  v.  Blake,  102  Mass.  297.  An  underground 
drain  is  not  visible  or  apparent  to  an  owner  of  property,  and 
the  adverse  user  did  not  begin  to  run  until  it  was  brought  to 
the  notice  of  the  defendant's  testator,  in  1875,  and  it  is 
apparent  that  at  the  time  of  the  commencement  of  this 
action  such  user  had  not  ripened  into  a  title.  Nor  can 
the  right  of  drainage  be  sustained  upon  any  claim  that 
the  drain  existed  at  the  time  of  the  deed  to  Davidson.  If  Will- 
iams had  constructed  this  drain  for  the  benefit  of  all  the  lots  on 
Patroon  street,  the  right,  so  far  as  it  related  to  the  lots  west  of 
defendant's  lot,  was  lost  upon  the  conveyance  to  Davidson.  As 
already  stated,  the  drain  was  not  an  apparent  or  visible  incum- 
brance, and,  in  the  absence  of  actual  knowledge  of  its  existence, 
Davidson  had  a  right  to  rely  upon  appearances,  and  to  believe 
that  the  apparent  condition  was  the  real  one.  In  such  a  case  as 
this,  the  grantee  takes  his  land  according  to  the  terms  of  his 
deed,  and,  if  the  deed  gives  no  notice  of  any  right  reserved  in 
favor  of  the  grantor  across  the  lot  conveyed,  the  latter  is  freed 
from  any  servitude  theretofore  existing,  and  the  grantor  is 
estopped  by  his  covenants  from  asserting  any.  Butterworth  v. 
Crawford,  46  N.  Y.  349  ;  Huyck  v.  Andrews,  113  N.  Y.  81  ;  20 
N.  E.  Rep.  581. 

The  appellant's  claim  that  the  owner  of  defendant's  lot  is 
chargeable  by  the  record  with  constructive  notice  of  the  exist- 
ence of  the  drain  from  the  date  of  the  deed  to  Davidson  cannot 
be  sustained.  The  deed  to  Davidson  gave  no  notice  that  the  lot 
thereby  conveyed  was  burdened  with  a  servitude  in  favor  of  any 
lots  of  Williams  on  the  west.  It  conveyed  the  right  to  the  use 
of  a  diaiii  across  the  grantor's  lot  on  the  east,  leading  to  the 


480  INCORPOREAL    1IEUKDITAMENT8. 

common  sewer  to  Orange  street.  This  was  beneficial  to  the  lot 
conveyed.  But  there  was  no  intimation  that  lots  on  the  west 
were  to  enjoy  a  similar  benefit,  or  that  Davidfion's  lot  was 
burdened  with  a  right  of  drainage,  in  their  favor.  None  of  the 
subsequent  deeds  for  this  lot  recognized  any  servitude  in  favor 
of  plaintiff's  lot.  The  fact  that  the  deed  to  Davidson  was  not 
recorded  until  May,  1873,  long  after  the  record  of  the  deed 
from  Williams  to  Vail,  is  not  a  material  fact  in  the  record.  If 
the  deed  to  Vail  had  conveyed  a  right  of  drainage  across  David- 
son's lot,  the  failure  to  record  the  Davidson  deed  might  have 
been  important.  But,  as  already  pointed  out,  this  deed  did  not 
purport  to  grant  or  convey  any  right  of  drainage.  It  is  only 
when  two  conveyances  pur[)ort  to  convey  the  same  property  that 
a  subsequent  purchaser  obtains  a  priority  over  an  earlier  grantee 
by  reason  of  priority  of  the  record  of  his  deed.  Neither  was 
the  defendant  or  his  grantor  chargeable  with  notice  of  the  con- 
tents of  the  Flood  deed.  The  conveyance  was  subsequent  to 
both  the  deeds  to  Davidson  and  Vail.  It  did  not  a|)pearin  the 
chain  of  title  to  either  lot;  and,  if  it  did,  I  fail  to  see  how  the 
fact  that  Flood's  lot  was  burdened  with  the  right  of  drainage  in 
favor  of  all  the  lots  on  Patroon  street  could  alter  the  rights 
which  the  owner  of  the  defendant's  lot  acquired  under  the  deed 
to  Davidson.  The  order  must  be  affirmed  and  judgment  abso- 
lute rendered  for  the  respondent,  with  costs.     Ail  concur. 


Equitable  Easement  —  Title  to  Alley  by  Estoppel. 

Clhak  V.  Kleke,  117  111.  643;  7  N.  E.  111. 

Error  to  First  district. 

Sheldon,  J.  We  are  of  opinion  that,  upon  the  facts  of  this 
case,  Cihak,  the  plaintiff  in  error,  has  an  easement  in  the  alley 
in  question,  which  cannot  be  destroyed  without  his  concurrence. 
We  would  have  no  doubt  in  the  matter  had  Mrs.  Hubbard,  the 
grantor  of  Cihak,  been  the  actor  in  the  sale  to  him,  and  in  the 
previous  management  of  the  entire  property  instead  of  Gun- 
zenhauser.  The  proof  establishes  to  our  satisfaction  that  in  1859 
Gunzenhauser,  as  agent,  took  charge  of  the  three  lots  19,  20,  and 
21,  fronting  on  De  Koven  street,  to  care  for,  lease  them,  and 
collect  the  rents;  that  for  the  more  advantageous  leasing  of  the 
lots,  and  deriving  the  most  rental,  he  subdivided  them,  making 
of  lots  20  and  21,  four  lots  fronting  on  Jefferson  street  and 
dividing  lot  19  into  two  lots  fronting  on  De  Koven  street.  He 
made  the  four  lots  on  Jefferson  street  90  feet  in  depth,  and  an 
alley  10  feet  wide,  —  the  alley  running  from  north  to  south  along 


EQUITABLE    EASEMENT TITLE    TO    ALLEY    BY    ESTOPPEL.    481 

the  entire  east  line  of  lot  19,  and  taking  off  the  west  10  feet  of 
the  east  two  lots,  thus  forming  an  alley  between  the  cast  half  of 
lot  19  on  the  west,  and  the  four  lots  on  the  east ;  that  he  drove 
the  stakes  for  the  alley  ;  that  he  made  written  leases  of  the  lots, 
according  to  this  subdivision,  leasing  the  four  lots  as  only  ninety 
feet  deep  ;  that  in  1859  he  leased  the  east  half  of  lot  19,  and  the 
tenant  in  that  year  put  up  a  fence  on  the  west  line  of  the  alley, 
and,  as  the  four  lots  east  of  the  alley  were  leased,  the  tenant 
would  put  a  fence  on  the  west  end  of  his  lot  adjoining  the  alley, 
so  that  by  about  1864  all  the  four  lots  east  of  the  alley  were 
leased  and  occupied,  and  there  was  either  a  fence  or  shed  and 
barn  along  the  entire  east  line  of  the  alley;  and  from  that  time 
until  1882,  with  the  alley  thus  opened  and  defined,  all  the  lots 
were  under  lease  in  the  manner  stated.  This  establishment  of 
the  alley  was  not  only  for  the  use  and  benefit  of  the  lots  from 
which  it  was  taken  on  the  east  of  it,  but  it  was  as  well  for  the 
use  and  benefit  of  the  east  half  of  lot  19,  which  adjoined  its 
whole  length  on  the  west.  This  alley  was  a  manifest  advantage 
to  the  east  half  of  lot  19,  and  must  have  enhanced  its  rental 
value.  There  was  a  building  on  the  east  half  of  lot  19  fronting 
on  De  Koven  street,  with  its  side  on  the  line  of  the  alley,  with  a 
window  in  it,  and  a  door  leading  into  the  alley.  The  alley  was 
actually  being  used  for  the  delivery  of  coal  and  wood  for  the 
house,  and  was  the  only  means  of  access  used  for  such  purpose. 
If  all  this  had  been  with  the  knowledge  and  procurement  of  the 
owner,  and  she  had  personally  sold  the  east  half  of  lot  19,  the 
case  would  seem  to  be  brought  within  the  principle  that  when 
the  owner  of  two  tenements,  or  of  an  entire  estate,  has  arranged 
and  adapted  these  so  that  one  tenement,  or  one  portion  of  the 
estate,  derives  a  benefit  and  advantage  from  the  other,  of  a  per- 
manent, open,  and  visible  character,  and  he  sells  the  same,  a 
purchaser  takes  the  tenement  or  portion  sold  with  all  the  benefits 
and  burdens  which  so  appear,  at  the  time  of  the  sale,  to  belong 
to  it.  Morrison  v.  King,  62  III.  34;  Ingals  v.  Plamondon,  75 
III.  118;  James  v.  Jenkins,  34  Md.  1;  Huttemeier  v.  Albro,  18 
N.  Y.  50;  Lampman  v.  Milks,  21  N.  Y.  507  ;  Dunklee  v.  Wilton 
R.  Co.,  24  N.  H.  489  ;  Kieffer  v.  Imhoff,  26  Pa.  St.  438;  Cannon 
V.  Boyd,  73  Pa.  St.  179. 

We  do  not  concur  in  the  view  of  counsel  for  defendants  in 
error,  that  the  easement  to  be  claimed  by  the  grantee  in  such  a 
case  must  be  really  necessary  for  the  enjoyment  of  the  estate 
granted.  Mr.  Bennett,  in  his  ec'ition  of  Goddard  on  Easements 
(page  122),  in  speaking  on  this  subject  of  grants  of  qnasi-Qd.&Q- 
ments  upon  the  conveyance  of  one  of  two  lots,  says  :  — 

"  The  third  class  of  cases  is  where  the  quasi-QSiSemQut  claimed 

31 


482  INCORPOREAL    HEREDITAMENTS. 

by  the  grantee  ia  not  really  '  necesstiry  '  for  the  enjoyment  of  the 
estate  granted,  but  is  highly  convenient  and  beneficial  therefor; 
and  here  the  modern  rule  in  America  is  that,  if  such  easement  is 
continuous  and  apparent  at  the  time  of  the  grant,  it  passes  to  the 
purchaser  with  his  estate,  otherwise  not." 

And  in  Washb.  Easem,  (3d.  Ed.)  95,  in  the  discussing  of  this 
question,  the  author  says:  — 

'*It  (the  easement)  must  be  reasonably  necessary  to  the  en- 
joynient  of  the  part  which  claims  it;  and,  where  that  is  not  the 
case,  it  requires  descriptive  words  of  grant  or  reservation  in  the 
deed  to  create  an  easement  in  favor  of  one  part  of  a  heritage 
over  another." 

There  can  be  no  doubt  here  that  the  alley  was  highly  con- 
venient and  beneficial  for  the  enjoyment  of  the  estate  granted 
to  Cihak.  Gunzenhauser  would  appear  to  have  made  the  sub- 
division he  did  of  his  own  motion.  Wilder  was  the  owner  at 
the  time,  and  lived  in  Chicago.  All  that  goes  to  connect  him 
with  the  subdivision  is  Gunzenhauser's  statement  that  Wilder 
was  on  the  ground  several  times;  helped  him  to  get  off  the 
squatters;  *' made  no  objection  to  my  letting  out  the  land  in 
that  way,  and  was  perfectly  satisfied."  While  Henry  G.  Hub- 
bard evened  the  property,  he  lived  in  Connecticut,  and  is  not 
shown  to  have  had  any  personal  knowledge  of  the  subdivision  ; 
and  the  same  with  Mrs.  E.  K.  Hubbard.  We  understand  she, 
too,  resided  in  Connecticut.  E.  K.  Hubbard,  her  husband,  tes- 
tifies that  he  resided  in  Chicago  from  1835  to  1885;  that  he  had 
authority  from  his  wife  to  act  on  her  behalf;  says  he  thinks  his 
wife  had  seen  the  lots  ;  that  he  saw  them,  after  his  wife  became 
owner,  perhaps  once  a  month  ;  that  he  did  not  recollect  consult- 
ing with  any  one  regarding  the  subdivision  platted  and  recorded, 
except  perhaps  Gunzenhauser.  And  here  the  inquiry  is  sug- 
gested why  this  plat  of  the  subdivision  which  was  made  and  re- 
corded at  the  instance  of  E.  K.  Hubbard,  and,  as  Mrs.  Hubbard 
acknowledges,  by  her  direction,  comes  to  correspond  precisely 
with  the  subdivision  which  Gunzenhauser  made  in  1859,  and  has 
the  same  alley  of  just  ten  feet  wide,  exactly  as  Gunzenhauser 
staked  out  in  1859?  It  implies  knowledge  by  Mrs.  Hubbard 
of  the  subdivision,  and  is  evidence  tending  to  show  her  adoption 
and  confirmation  of  that  subdivision,  and  of  what  was  done 
under  it. 

But  without  further  pursuing  this  branch  of  the  case,  or 
expressing  an  opinion  whether  the  circumstances  of  the  arrange- 
ment and  use  of  the  alley  for  the  accommodation  of  this  lot  of 
Cihak,  and  selling  the  lot  with  the  apparent  appurtenance  of  the 
alley  attached  to  it,  were  alone  sufficient  to  give  to  the  grantee  of 


EQUITABLE   EASEMENT — TITLE    TO    ALLEY    BY    ESTOPPEL.    483 

the  lot  the  use  of  the  alley,  we  come  to  the  conclusion  that  they 
were  sufficient  when  taken  in  connection  with  the  subsequent 
sales  being  made  subject  to  the  alley.  Defendants  in  error 
never  bought  or  paid  for  the  alley,  or  so  supposed.  In  the 
deeds  for  lots  1  iuul  2  the  use  of  the  west  10  feet  of  the  lots  (or 
a  private  alley  was  expressly  reserved.  And  at  the  time  the 
deed  for  lots  3  and  4  was  made  there  was  upon  record  the  plat 
of  t!ie  subdivision  showing  the  alley  upon  it.  True,  it  is  named 
"  Private  Alley,"  and  it  is  insisted  by  counsel  for  defendants  in 
error  that  this  means  private  to  the  lots  from  which  the  alley 
was  taken,  —  those  on  the  east  side  of  it, — and  that  it  was  for 
their  use  only.  Under  other  circumstances,  of  Mrs.  Hubbard 
not  being  the  owner  of  the  ground  on  the  west  side  of  the  alley, 
this  might  be  so.  But  was  it  so  under  the  circumstances  here? 
The  alloy  had  originally  been  laid  out  many  years  before  for  the 
accommodation  of  Cihak's  lot,  as  well  as  the  other  lots,  and  bad 
ever  afterwards  been  used  equally  for  the  accommodation  of 
Cihak's  and  the  other  lots.  At  the  time  Mrs.  Hubbard  put  the 
designation  "  Private  Alley  "  on  the  plat  the  alley  was  being  so 
used,  and  she  was  the  owner  of  the  ground  on  both  sides  of  the 
alley,  with  a  building  standing  on  the  west  line  of  the  alley  con- 
structed with  special  adaptation  for  the  use  of  the  alley.  The 
alley  was  important  for  the  beneficial  enjoyment  of  her  lot  on 
the  west  side  of  the  alley,  and  must  have  enhanced  its  value. 
There  was  no  apparent  purpose  why  the  alley  should  not  be  as 
nmch  for  the  use  of  the  owner's  ground  on  one  side  of  the 
alley  as  onthe  other  side.  Under  such  circumstances,  we  think 
the  meaning  of  "  private  "  was  that  the  alley  was  private  to 
the  owner's  own  ground;  that  the  alley  was  for  the  use 
of  the  owner's  lots  only,  but  of  her  lots  abutting  on  both 
sides  of  the  alley,  and  not  for  the  use  solely  of  her  lots  on 
one  side  of  the  alley. 

We  give  no  consideration  to  the  manifestly  incompetent  testi- 
mony of  E.  K.  Hubbard,  that  his  wife's  intention  was  to  reserve 
the  alley  as  a  private  alley  for  the  use  of  lots  1,2,  3,  and  4.  It 
was  not  competent  for  him  to  swear  to  his  wife's  or  any  one  else's 
intention.  All  that  he  might  do  in  such  regard  would  be  to 
testify  to  acts  and  declarations  as  showing  intention.  The  ques- 
tion here  is,  what  others  had  reason  to  believe  was  the  intention 
from  the  circumstances  and  the  acts  done. 

The  alley  was  an  important  consideration  with  Cihak  when  he 
purchased.  An  inspection  of  the  abstract  of  title  did  not  show 
the  alley  of  record.  This  defect  was  brought  to  the  attention  of 
Gunzenhauser,  and,  to  assure  Cihak  that  he  would  get  with  his 
lot  the  use  of  the  alley,  the  plat  of  the  subdivision,  with  the  alley 


484  INCORPOREAL    1IEKEDITAMENT8. 

sippearing  upon  it  acknowledged  by  Mrs.  Hul)b:ird,  was  shown  \>y 
Gimzenhauser  to  Cihak;  tlie  former  stating  that  the  plat  was 
goini^  to  be  put  upon  record.  This  satisfied  Cihak  that  ho  would 
get  the  benefit  of  the  alley.  Gunzonhauser,  who  made  the  sale, 
Kaspur,  who  acted  for  Cihak,  and  Cihak,  no  doubt,  all  believed 
that  the  recording  of  the  j)lat  of  the  subdivision  wouhl  secure  for 
Cihak  the  use  of  the  alley-  It  did  not  occur  to  either  of  them 
that  the  word  "  private"  had  any  significance  as  excluding  such 
use.  To  so  constiue  that  word  would  bo  to  make  it  but  a  snare 
to  entrap  the  one  purchasing  the  lot  on  the  west  side  of  the  alley. 
It  would  be  to  give  to  defendants  in  error  ground  which  they 
never  purchased,  and  to  rob  plaintiff  in  error  of  an  alley,  the  use 
of  which  he  had  good  reason  to  believe  he  puichased  as  an  appur- 
tenance to  his  lot.  We  find  enough  in  the  facts  of  this  case  to 
have  put  the  defendants  on  inquiry,  so  as  to  have  affected  them 
with  notice  of  the  circumstances  upon  which  we  rest  the  right  of 
the  complainant  to  the  use  of  this  alley. 

The  judgment  of  the  appellate  court  and  the  decree  of  the 
circuit  court  will  be  reversed,  and  the  cause  remanded  to  the 
circuit  court  for  further  proceedings  in  conformity  with  this 
opinion. 

Scott,  J.     I  do  not  concur  in  this  opinion. 


Abandoiiment  —  Right    of    Way  —  Mainteuance  of    a   Drain. 

Stein  V.  Dahm,  96  Ala.  481;   11  So.  597. 

Appeal  from  chancery  court.  Mobile  County;  W.  H.  Tayloe, 
Chancellor. 

Action  by  Joseph  Stein  against  John  Dahm  and  another  to 
reopen  an  alley  formerly  existing  between  the  lots  of  the 
parties,  and  keep  the  drain  running  therein  unobstructed  by 
defendant.  From  a  decree  dismissing  the  bill,  plaintiff  appeals. 
Decree  affirmed  as  to  the  alley;  as  to  the  drain,  the  injunction  is 
reinstated  and  made  perpetual. 

Stone,  C.  J.  It  is  assigned  as  error  that  the  chancellor,  after 
first  granting  relief  to  complainant,  entertained  defendant's 
petition  and  granted  them  a  rehearing.  The  first  decree  was 
rendered  in  vacation  under  rule  80  of  chancery  practice  (Code 
1886,  p.  825).  The  concluding  clause  of  that  rule  is  in  the 
following  language:  "When  the  decree  is  rendered  in  vaca- 
tion, either  party  may  apply  for  a  rehearing  by  the  second 
day  of  the  next  ensuing  term  of  said  court."  The  appli- 
cation in  this  case  was  made  "  by  the  second  day  of  the 
next    ensuing    term    of  said  court,"  and  the  chancellor  com- 


ABANDONMENT  —  RIGHT    OF   WAY  —  DRAIN.  485 

mitted  no  reversible  error  in  entertaining  it.  In  fact,  we  can- 
not perceive  on  what  ground  such  order,  if  applied  for  in  time, 
could  be  reviewed  in  this  court.  Of  course,  rehearings  are 
granted  under  that  rule  only  when  the  chancellor  is  induced  to 
change  his  mind,  or  comes  to  doubt  the  correctness  of  his  first 
ruling.  Once  granted,  however,  the  case  is  left  without  a 
decree,  precisely  as  if  none  had  ever  been  rendered.  There  is 
nothing  in  this  assignment  of  error. 

If  the  question  were  before  us,  we  are  not  prepared  to  say  we 
would  hold  the  answer  puts  in  issue  the  execution  of  the  deed. 
Exhibit  A,  so  as  to  cast  on  complainant  the  burden  of  proving 
its  execution.  The  answer  does  not  deny  the  execution  of  the 
deed.  It  only  denies  that  Stein  became  the  owner  of  the  lot  by 
virtue  of  the  deed.  There  are  many  conceivable  ways  in  which 
that  denial  could  be  made  good,  notwithstanding  the  due  exe- 
cution of  the  deed  by  Mr.  and  Mrs.  Saucier.  We  need  not 
suggest  them. 

Neither  is  there  anything  in  the  objection  that  after  granting 
the  rehearing  the  chancellor  gave  further  time  and  authority  for 
taking  additional  testimony.  He  granted  that  authority  to  each 
party.  True,  there  are  strong  reasons  why  chancellors  should 
exercise  great  caution  in  such  conditions;  but  under  our  practice 
that  is  left  to  the  sound  discretion  of  the  chancellor,  and  is  not 
revisable.  In  the  present  case  the  question  arose,  not  on  the 
re-examination  of  witnesses,  but  on  the  examination  of  witnesses 
not  previously  examined.  See  Bonner  v.  Young,  68  Ala.  35; 
Harrell  v.  Mitchell,  61  Ala.  270. 

John  B.  Toulme  became  the  owner  of  two  adjoining  lots  and 
houses  in  the  city  of  Mobile,  known  as  Nos.  •'  143 "  and 
'*  145  "  on  the  south  side  of  Dauphin  street.  Each  lot  fronted 
30  feet  on  Dauphin  street,  and  extended  back  from  120  to 
130  feet.  On  each  was  a  two-story  brick  store,  and  on  the  rear 
of  the  lots,  extending  across  them,  was  a  two-story  brick 
warehouse  or  workshop,  divided  into  two  compartments,  corre- 
8i)onding  to  the  divisions  of  the  stores  in  front.  In  the  rear  of 
each  store  was  a  kitchen,  and  between  the  stores  in  front,  the 
warehouses  in  the  rear,  and  the  two  kitchens  on  the  sides  was 
an  open  space,  court  or  yard,  which  was  common  to  both  store- 
houses. We  are  not  informed  how  the  stores  were  covered  — 
whether  by  one  common  or  connected  roof  or  by  separate  roofs  ; 
nor  are  we  informed  in  what  manner  the  second  floors  of  the 
houses  were  constructed —  whether  they  covered  the  entire  area 
or  only  that  part  inclosed  within  the  brick  walls,  to  be  presently 
descril)ed.  Each  store,  at  the  time  it  was  owned  by  Mr.  Toulme, 
had  brick  walls  entirely  around  it,  but  the  side  wall  of  No.  142, 


486  INCORPOREAL  HEREDITAMENTS. 

next  to  145,  was  bricked  up  only  one  story.  What,  if  anything, 
was  above  that  is  not  shown.  '  Store  No.  145  covered  the  entire 
hit,  30  feet  wide,  from  the  front  extending  as  far  bade  as  the 
store  extended,  inclosed  entirely  within  an  outer  brick  wall. 
The  lot  143  was  not  so  covered.  The  house  on  it  extended 
towards  145  some  twenty -two  feet,  leaving  a  space  or  alley- 
way nearly  or  quite  eight  feet  wide  between  the  two 
stores.  This  extended,  with  the  brick  wall  on  either  side,  from 
end  to  end  of  the  stores,  and  had  double  door  shutters  at  each 
end.  These  were  usually  kept  open  in  the  daytime,  and  the 
alley  was  a  common  passway  for  persons  going  to  and  from  the 
rear  of  either  of  the  storehouses;  and  there  was  a  common 
drain  or  sewer  through  this  alley  w;iy,  which  conducted  the 
accumulated  water  from  the  common  back  yard  to  the  gutter  in 
front  of  the  stores.  At  the  time  we  are  s{)eaking  of,  which  was 
prior  to  1860,  one  Werborn  was  tenant  of  the  house  143  entire, 
and  of  all  save  the  lower  story  of  No.  145.  He  was  an  uphol- 
sterer, and  kept  a  furniture  store.  In  August,  1860,  Mr. 
Toulme  executed  his  last  will,  and  soon  afterwards  died.  The 
will  was  probated  and  established  during  that  year.  By  his  will 
he  devised  the  two  lots  and  storehouses  separately  to  two  of  his 
married  daughters,  Madeline  J.  Saucier  and  Victoire  Saucier. 
The  husband  of  Madeline  J.  died,  and  by  a  second  marriage  she 
became  Mrs.  Breath.  The  devise  to  Madeline  J.  was  No.  143, 
describing  it  as  *'  measuring  thirty  feet  front,"  being  the  east 
half  of  said  lot  of  land.  To  this  devise  he  added  the  following 
clause:  "  That  part  now  devised  hath  thereon  a  two-story  brick 
house  with  a  kitchen,  a  two-story  privy,  and  the  half  of  a  two- 
story  warehouse  in  the  yard,  and  the  right  of  way  through  an 
alley  or  passage  from  Dauphin  street  to  the  yard  in  the  rear  of 
said  property."  Lot  and  house  No.  145,  '*  measuring  thirty 
feet  front  on  Dauphin  street,  and  running  back  as  the  other," 
he  devised  to  Victoire  Saucier,  and  added  as  part  of  the  devise 
"  the  right  of  way  through  the  alley  or  passage  from  Dauphin 
street  to  the  yard,  as  aforesaid."  Soon  after  the  deatli  of  Mr. 
Toulme,  Werborn  became  the  tenant  by  a  long  lease  of  each  of 
said  stores,  occupying  the  upper  story  of  145  as  a  residence, 
and  using  the  entire  house  143,  the  warehouse  or  workshop, 
and  the  lower  story  of  145,  in  his  business  as  an  upholsterer  and 
furniture  merchant.  He  continued  to  so  occupy  the  two  proper- 
ties under  renewals  of  lease,  until  a  very  short  time  before  the 
tiling  of  this  bill,  August  1,  1890.  Between  1860  and  1870  — 
probably  about  1866  —  a  very  material  alteration  was  made  in 
the  store  No.  143  and  the  alley-way,  and  in  the  connection  of  the 
two  houses.     That  alteration  was  made  at  the  request  of  Mr. 


ABANDONMENT — UIGIIT    OF    WAY  —  DRAIN.  487 

Werborn,  and  under  his  direction,  but  with  the  consent  and  at 
the  expense  of  the  owners  of  the  property,  the  two  devisees 
under  Mr.  Touhue's  will.  It  consisted,  so  fur  as  is  material  to 
this  suit,  in  the  following:  The  entire  brick  wall  of  No.  143, 
which  adjoined  the  alley-way,  was  taken  down,  and  iron  sup- 
porting columns  were  substituted  in  its  stead  ;  and  the  floor  was 
<'Xtended  entirely  across  the  alley-way,  and  to  the  wall  of  145. 
In  this  way  that  floor  and  the  store  room  were  made  to  cover 
the  entire  thirty  feet.  The  front  door  of  the  alley  was 
removed,  and  the  entire  space  tilled  and  closed  with  a  costly 
show  window  and  towards  the  rear  of  what  had  been  the 
alley-way  a  bro:id  staircase  was  constructed  from  the  first 
to  the  second  floor  —  this  for  the  purpose  of  reaching  the 
second  story  of  143.  The  two  stores  remained  in  this  con- 
dition when  this  bill  was  filed,  except  that  two  or  three 
years  before  that  time  a  plank  wall  or  partition,  extending 
from  column  to  column,  had  been  erected  on  the  line  of  the 
removed  brick  wall  of  No.  143.  It  is  not  shown,  however, 
that  the  sewer  or  waste  escape  from  the  back  yard  to  the  front, 
through  the  alley-way,  had  never  been  obstructed.  It  is  sup- 
posed it  had  never  been  left  to  flow  under  the  floor  of  the 
closed  alley-way.  In  February,  187(5,  Victoire  Saucier  and  her 
husband  sold  and  conveyed  her  house  and  lot,  145  Dauphin 
street,  to  Joseph  Stein.  The  deed  contains  the  usual  full  cove- 
nants of  warranty.  It  describes  the  property  sold  as  a  lot  front- 
ing 30  feet,  bounded  on  the  east  by  property  of  Mrs.  Breath. 
It  gives  no  exprej-sion  of  the  easement  or  right  of  way  claimed, 
but  conveys  the  property,  "  together  with  the  tenements,  here- 
ditaments, rights,  members,  privileges,  and  appurtenances." 
After  the  execution  of  that  deed.  Stein  became  the  landlord  of 
Werborn  of  the  property  so  conveyed,  and  so  continued  until 
the  latter  ceased  to  occupy  it,  November  1,  1889.  In  June,  1879, 
Madeline  J.  Breath  and  her  husband  sold  and  conve^'^ed  to  John 
Dahm  storehouse  and  lot  No.  143  Dauphin  street.  Like  the 
other  deed,  it  describes  and  conveys  the  lot  as  fronting  30  feet 
on  Dauphin  street,  and  gives  as  its  western  boundary  the  lot  sold 
and  conveyed  by  Victoire  Saucier  and  her  husband  to  Stein  ; 
conveys  with  full  covenants  of  warranty,  "  together  with  the 
tenements,  hereditaments,  rights,  members,  privileges,  and  ap- 
purtenances." It  makes  no  mention  of  the  alley-way,  or  of  any 
easement  therein,  but  does  refer  to  the  will  of  her  father  as  the 
source  of  her  title.  From  this  time  forth  Dahm  became  the 
landlord  of  Werborn  of  the  property  so  purchased,  and  so  con- 
tinued as  long  as  the  latter  occupied  the  store.  The  present 
bill  was  filed  by  Stein,  and  seeks  to  reopen  the  alley,  and  to 


488  INCORrOREAL    HEREDITAMENTS. 

establish  liis  common  right  to  it  as  a  way  of  ingress  and  egress 
to  and  from  the  rear  of  his  property.  He  also  seeks  to  establish 
his  right  to  have  the  sewer  or  waste  way  throngh  the  alley  kept 
open  and  unobstrncted.  On  the  second  hearing  the  chancellor 
dismissed  the  bill. 

There  can  be  no  question  that  when  the  two  sisters  became  the 
separate  owners  of  the  separate  lots  and  stores  there  attached 
to  145  the  right  of  way  and  easement  in  the  alley-way  as  it  then 
stood,  which  is  claimed  in  the  present  suit.  Mr.  Toulme's  will 
clearly  proves  that.  Of  this  e:isement,  143  was  the  servient, 
and  145  the  dominant,  estate.  Has  that  right  been  surrendered 
or  lost?  The  two  sisters,  Mrs.  Saucier  and  Mrs.  Breath,  were 
examined  as  witnesses.  Each  testified  that  the  alterations  and 
improvements  closing  up  the  alley-way  were  made  in  1865  or 
1860;  that  they  were  made  at  the  request  of  Werborn,  but 
with  their  knowledge  and  consent,  and  at  their  expense.  Mrs. 
Breath  testified  that  Mrs.  Saucier  gave  her  consent  at  the  time  that 
the  alley  should  be  closed  up,  and  each  testified  that  its  use  as  a 
passageway  was  then  and  there  entirely  and  forever  abandoned. 
This  Mrs.  Saucier  testified  to  as  a  fact.  She  also  testified  that  it  was 
her  intention  at  the  time  to  surrender  and  al)andon  all  claim  to 
the  alley  as  a  passageway,  but  this,  being  objected  to,  was  illegal 
evidence.  Uncommunicated  intention  cannot,  under  our  rulings, 
be  made  the  subject  of  direct  proof.  Ball  v.  Farley,  81  Ala. 
288;  1  South.  Rep.  253;  Burks  v.  Bragg,  89  Ala.  204;  7  South. 
Rep.  156;  Railway  Co.  v.  Davis,  91  Ala.  615;  8  Sonth.  Rep. 
349.  The  fact  of  consentive  closing  up  of  the  alley,  and  the 
fact  of  abandonment,  were  competent  proof.  This,  according 
to  the  testimony,  was  done  about  10  years  before  Stein  pur- 
chased, and  about  13  years  before  Mrs.  Breath  sold  to  Dahm. 
It  was  more  than  20  years  before  this  suit  was  brought,  and  be- 
fore any  complaint  is  shown  to  have  been  made  by  Stein.  That 
great  jurist.  Chief  Justice  Shaw,  in  Dyer  v.  Sanford,  9  Mete. 
(Mass.)  395,  401,  said:  '*  If  the  owner  of  the  dominant  grants 
a  license  to  the  owner  of  the  servient  tenement  to  erect  a  wall 
which  necessarily  obstructs  the  enjoyment  of  the  easement,  and 
it  is  erected  accordingly,  it  may  amount  to  proof  of  an  abandon- 
ment of  the  easement.  It  is  not  a  release,  because  it  is  by  parol. 
But  it  results  from  the  consideration  that  a  license,  when  exe- 
cuted, is  not  revocable;  and  if  the  obstruction  be  per- 
manent in  its  nature,  it  does  de  facto  terminate  the 
enjoyment  of  the  easement."  In  Pope  v.  Devereux,  5  Gray, 
409,  this  principle  was  declared:  "  Evidence  of  an  executed  oral 
agreement  between  the  owners  of  the  dominant  and  servient 
tenements  to  discontinue  an  old  way,  and  substitute  a  different 


ABANDONMENT RIGHT  OF  WAY DRAIN.  489 

one,  is  competent  evidence  of  the  surrender  of  the  old  right  of 
way."  And  in  Ballard  v.  Butler,  30  Me.  94,  is  this  language: 
"  When  the  person  to  whom  a  servitude  is  due  does  an  act  which 
is  incompatible  wit!)  the  nature  and  exercise  of  it,  the  servitude 
is  thereby  extinguished."  It  is  said  in  2  Washb.  Real  Prop. 
*57 :  "There  are  many  acts  of  abandonment ,  short  of  a  nonuser 
for  twenty  years,  which  if  d(me  by  the  owner  of  the  dominant 
tenement,  and  acquiesced  in  by  that  of  the  servient,  may  amount 
to  a  surrender  of  such  an  easement,  provided  such  acts  of  aban- 
donment have  been  done  with  such  intention."  In  6  Amer.  & 
Eng.  Enc.  Law,  147,  is  this  language:  *'  Abandonment  will  be 
presumed  from  various  acts  of  the  dominant  owner;  as,  for 
example,  where  the  holder  of  the  right  does,  or  permits  to  be 
done,  any  act  inconsistent  with  the  future  enjoyment  of  the 
right."  See,  also,  notes,  3  Kent  Comm.  *448,  *449;  King  v. 
Murphv,  140  Mass.  254;  4  N.  E.  Rep.  566;  Corning  v.  Gould, 
16  Wend.  531.  In  2  Wait  Act.  &  Def.  680,  it  is  said:  "  A  use 
which  had  been  abandoned  or  disused  at  the  time  of  the  sale 
would  not  come  within  the  conditions  above  given  [transfer  of 
the  easement  by  a  sale  and  conveyance  of  the  dominant  estate], 
and  a  right  which  did  not  then  legally  exist,  although  it  might 
have  had  a  previous  existence,  would  not  be  revived  without 
express  words."  If  it  be  objected  that  the  removal  of  the 
door  shutters  and  substitution  of  the  show  window,  the  exten- 
sion of  the  floor  of  143  across  the  alley-way,  and  the  construc- 
tion of  the  stairway  in  what  had  been  the  alley,  were  none  of 
them  of  a  permanent  character,  but  all  might  be  restored  to 
their  former  condition,  and  at  trifling  expense  without  in- 
jury to  the  properties,  what  will  be  said  of  the  removed  brick 
wall  which  separated  the  store  No.  143  from  the  alley-way? 
All  the  alterations  were  made  at  one  and  the  same  time,  and 
with  the  knowledge  and  consent  of  both  landlords,  and  at 
their  expense.  All  were  made  in  execution  of  a  common  design 
and  purpose.  Can  it  be  supposed  that  the  mutual  consent  would 
have  been  given,  and  the  necessary  expense  shared  in,  if  at  the 
end  of  a  term  original  conditions  were  to  be  re-established,  and 
store  143  left  without  a  wall  to  sepaiate  and  protect  it  from  the 
open  alley?  We  hold  that  the  testimony  very  fully  proves  that 
the  right  of  way  through  the  alley,  which  pertained  originally  to 
the  lot  and  store  145,  was  surrendered  and  abandoned  when  the 
alterations  were  made  in  1865  or  1866.  This  was  long  before 
the  present  owners.  Stein  and  Dahm,  had  any  interest  in  or 
claim  to  the  several  properties;  and  consequently  Stein,  by  his 
purchase,  acquired  no  right  to  use  the  alley  as  a  passway  to  and 
from  the  rear  of  his  property.     We  think,  however,  that  the 


490  INCORPOREAL    HEREDITAMENTS. 

sewer  or  waste  way  which  runs  through  or  under  the  alley,  and 
drains  the  common  back  yard,  rests  on  a  different  j)rinciple.  It 
is  not  proved  that  it  has  ever  been  ob>trn<:ted  or  discontinued. 
We  infer  from  the  circumstances  that  it  flows  under  the  floor 
which  was  extended  from  143  across  the  alley.  This  being  the 
case,  the  record  fails  to  show  an  abandonment  of  this  part  of  the 
easement,  and  it  follows  that  this  right  still  pertains  to  145.  So 
far  as  the  right  of  ingress  and  egress  through  the  alley-way  is 
concerned,  the  decree  of  the  chancellor  is  affirmed. 

The  bill  charges  that  defendant  Dahm  claims  the  right  to  close 
the  sewer  through  and  under  what  was  formerly  the  alley,  and 
that  he  intends  and  threatens  to  close  that  drain  or  outlet  against 
comi)lainant.  The  answer  admits  this  charge  to  be  true.  We 
hold  that  complainant  is  entitled  to  an  injunction  on  this  feature 
of  the  case  made  by  his  bill.  It  is  therefore  ordered  and  decreed 
that  the  decree  of  the  chancellor  be  to  that  extent  reversed,  and 
this  court,  proceeding  to  render  the  decree  the  chancellor  should 
have  rendered,  doth  order  and  decree  that  the  injuction,  so  far 
as  it  restrained  the  closing  of  the  sewer  or  drain,  be  reinstated 
and  made  perpetual.  Let  the  complainant,  Stein,  pay  three- 
fourths  of  the  costs  of  the  original  suit  and  one  third  of  the 
co^ts  of  appeal;  and  the  remaining  costs — that  is,  one-fourth 
of  the  costs  of  the  original  suit  and  two-thirds  of  the  costs  of  the 
appeal,  alike  in  the  court  below  and  in  this  court — are  adjudged 
against  Dahm,  the  appellee.     Reversed  and  rendered. 


When  Non-User  Will  Extinguish  an  Easement. 

Edgerton  v.  McMuUan,  65  Kan.  90;  39  P.  1021. 

Opinion  by  Allen,  J. 

This  was  an  action  of  trespass  brought  to  test  the  title  of  the 
defendants  below  (plaintiffs  in  error  in  this  court)  to  a  right  of 
way  over  a  certain  strip  of  land  described  in  the  petition.  The 
case  was  tried  before  a  judge  ^ro  (e?n.  It  was  admitted  at  the 
trial  that  the  land  was  conveyed  by  patent  from  the  United  States 
to  Harriet  W.  P.  McMullan,  that  the  phiintiffs  were  her  sole 
heirs,  and  that  the  defendant,  under  a  claim  of  right,  :is  presi- 
(1*  nt  of  the  Wyandotte  Town-Site  &  Improvement  Company, 
went  upon  the  strip  of  land  in  question,  and  cut  down  trees  for 
the  purpose  of  opening  np  said  strip  of  land  as  a  road.  The 
j)l:iintiffs  introduced  a  deed  from  Henry  M.  McMullan  and  Har- 
riet W.  P.  McMullan  to  Mary  A.  Mather,  dated  September  6, 
1860,  conveying  a  four-acre  tract  of  land  therein  described, 
'*  with  the  privilege  of  a  road  two  poles  wide  on  the  north  and  east 


WHEN    NON-USER    MILL    EXTINGUISH    AN    EASEMENT.  491 

lines  of  the  above-described  premises."  The  defendants  offered 
in  evidence  a  deed  dated  August  1(5,  1882,  from  Samuel  F. 
Miither  and  Mary  A.  Mather  to  B.  D.  Hoag,  trustee.  It  was 
admitted  that  Hoag  was  trustee  for  the  Wyandotte  Town-Sito  & 
Imi)rovement  Compau} ,  to  which  he  afterwards  conveyed  the 
property.  There  was  evidence  showing  that  there  had  been 
public  travel  ah)ng  a  part  of  the  land  in  dispute  for  a  time;  ti)at 
a  hedge  fence  was  })ut  out  near  the  noith  line  of  the  land  con- 
veyed to  Mrs.  Mather,  30  feet  from  the  north  line  of  the  Mc- 
Mulian  allotment,  about  25  years  before  the  tiial  of  the  action. 
The  strip  was  open  at  the  end  until  about  two  years  before  the 
commencement  of  the  action,  when  it  was  fenced  up  by  the  plain- 
tills  below.  The  land  had  not  been  occupied  for  any  purpose, 
but  allowed  to  grow  up  in  trees.  The  court  made  the  following 
special  findings  of  fact  and  conclusions  of  law  :  — 

"  (1)  That  prior  to  the  6th  day  of  September,  1860,  Har- 
riet W.  P  McMullan  was  the  owner  of  the  land  in  controversy, 
in  fee  simple.  (2)  That  on  said  date  she  sold  to  Mary  A. 
Mather  lands  adjoining  the  lands  in  controversy,  and  with  the 
privilege  of  a  road  two  pt)les  wide  over  and  along  the  land  in 
controversy  ;  that  about  the  year  1869  or  1870  the  said  Mary  A. 
Mather  fenced  in  her  land,  building  along  the  south  line  of  the 
land  in  controversy,  and  the  north  line  of  the  land  that  she  pur- 
chased from  the  said  Harriet  W.  P.  McMullan,  an  osage  orange 
hedge;  that  at  or  about  that  time  there  was  a  fence  upon  the 
north  line  of  the  land  in  controversy,  and  upon  the  east  and 
west  ends  thereof;  that  from  that  time  up  to  the  time  the  i)lain- 
tiffs  built  the  fence  around  the  land  that  is  hereinafter  men- 
tioned, said  land  was  not  used  as  a  road,  but  was  allowed  to  grow 
up  with  bushes  and  trees.  (3)  I  further  find,  as  a  matter  of 
fact,  that  said  Mary  A.  Mather  never  claimed  any  interest  in 
said  land;  that  when  she  planted  said  hedge  she  abandoned  and 
gave  up  any  right  that  she  had  in  the  easement  granted  by  said 
deed.  (4)  That  the  said  Harriet  W.  P.  McMullan  is  dead,  and 
that  the  plaintiffs  are  her  sole  and  only  heirs.  (5)  That,  some 
time  during  the  year  1886,  plaintiffs  built  a  valuable  fence  upon 
both  sides  and  both  ends  of  said  land  in  controversy  ;  that  the 
defendants  tore  down  and  destroyed  said  fence,  and  cut  trees 
thereon  ;  that  the  damage  so  done  was  one  dollar. 

''Conclusions  of  law:  I  find,  as  a  conclusion  of  law,  that 
plaintiff's  are  entitled  to  recover  herein,  in  the  sum  and  amount 
of  one  dollar,  together  with  their  costs." 

Thereupon  the  court  rendered  judgment  in  favor  of  the  plain- 
tiffs for  one  dollar.  The  certificate  of  the  judge  who  settled  the 
case  states  that  the  action  involves  the  title  to  real  estate. 


492  INCOPOREAL    HEREDITAMENTS. 

The  trial  court  held  that  the  evidence  showed  an  abandonment 
by  Mrs.  Mather  of  her  right  to   an   easement  over   this  land. 
The    only    evidence    to    support    that    claim    is    that    showing 
that   she    placed    a   hedge    fence    along   the  north    line  of  the 
land    conveyed   to    her    in    fee    simple,    which    was   the    south 
line  of  the  tract    in  controversy,  thus  excluding  from  her  in- 
closure    the    strip    two    poles    wide,    or    nearly    that    amount, 
and    that    she    never    actually    used    the    land    for    a    road. 
The  evidence  of  Dr.  Mather,  her  husband,  shows  that  she  had 
no  use  for  the  roadway,  but  contemplated  laying  the  land  out 
into  lots  at  some  time.     The  law  is  well  settled  that  mere  non- 
user  of  a  right  of  way  granted   by  deed  docs  not  constitute  an 
abandonment  of  the  right.     In  Washb.  Easem.,    p.    717,  the 
author  says;  "  If  the  easement  has  been  acquired  by  deed,  no 
length  of  time  of  mere  nonuser  will  o[)erate  to  impair  or  defeat 
the  right.     Nothing  short  of  a  use,  by  the  owner  of  the  premises 
over  which  it  was  giaiited,  which  is  adverse  to  the  enjoyment  of 
such  easement  by  the  owner  thereof,  for  the  space  of  time  long 
enough  to  create  a  prescriptive  right,   will   destroy    the  right 
granted."     So  in  Day  v.  Walden,  46  Mich.  575;   10  N.  W.  26, 
Judge  Cooley,  delivering  the  opinion  of  the  court,  says:    "  The 
right  to  the  easement  was  not  lost  by  the  mere  neglect  to  assert, 
use,  and  enjoy  it  for  the  period  of  twenty  years.     There  is  no 
doubt  of  this,  upon  the  authorities.     The  easement  was  created 
by  grant,  as  an  appurtenance  to  the  mill;   and  there  were  no 
conditions  or  limitations  attached  w^hich  rendered  its  use  neces- 
sary to  its  continuance.     The  grant  was  perpetuid,  and  without 
conditions,  and  therefore  the  privilege  granted  would  continue 
indefinitely,  whether  the  grantee  did  or  did  not  avail  himself  of  it. 
An  accepted  grant  cannot  be  waived  or  abandoned,  and  the  neglect 
of  the  grantee  to  enjoy  the  easement  would  be  no  more  signifi- 
cant in  its  bearing  upon  his  rights  than  the  neglect  to  enjoy  the 
freehold  to  which  the  easement  was  appurtenant."     To  the  same 
effect  are  Riehle  v.  Heulings,  38   N.  J.  Eq.  20;  Lindeman  v. 
Lindsey,  69  Pa.  St.  93.     There  is  no  evidence  in  the  record  of 
atiy  act  of  the  plaintiffs  inconsistent  with  the  right  of  the  defend- 
ants and  their  grantors  until  the  strip  was  fenced  up  at  the  end. 
Even  this  could  hardly  be  said  to  amount  to  such  a  hostile  asser- 
tion of  right  adverse  to  the  defendants  as  would  set  the  statute 
of    limitations    running    against    their    deed.     The    defendants 
neither  had  nor  claimed  to  have,  by  virtue  of  the  deed  to  Mrs. 
Mather,  the  full  title  to  the  land.     They  were  under  no  obliga- 
tion to  use  the  easement  until  they  desired  to  do  so,  nor  were 
they  bound  to  take  any  action  to  protect  their  rights  so  long  as 
there  was  no  occupancy  of  the    land   inconsistent    with    them. 


RIGHTS    OF    MILL    OWNERS    IN    STREAM    OF    WATER.  493 

While  the  deed  from  Mr?}.  Mather  to  Hoag  does  not  specifically 
mention  the  right  of  way,  it  <:raiits  the  land  and  appnrtenances 
thereto.  There  is  no  qnesliou  that  this  ea-ement  was  appurte- 
nant to  the  land,  and  passed  to  the  grantee  of  Mrs.  Mather.  The 
judgment  is  reversed,  with  direction  to  enter  judgment,  c»n  the 
s|)ecial  findings  and  undisputed  facts  of  the  case,  in  favor  of  the 
defendants.     All  the  justices  concurring. 


Rights  of  Mill  Owners  in   Stream  of  Water. 

Phillips  V.  Sherman,  64  Me.  171. 

Appleton,  C  J.  The  defendant  is  the  owner  of  a  grist  mill 
and  privilege  situate  on  a  stream  issuing  fiom  Hebron  Pond  in 
Monson.  The  evidence  shows  that  in  1820  a  dam  and  grist  mill 
were  erected  atthe  outlet  of  said  pond.  In  1841  the  then  owner 
of  the  privilege  rebuilt  and  enlarged  the  grist  mill  Jind  deepened 
the  channel  thereto.  Formerly  fifty  busliels  of  wheat  and  corn 
were  daily  ground  at  this  mill.  More  recently  the  number  has 
been  reduced  to  a  daily  average  of  about  twenty  bushels.  The 
consequence  is  that  a  much  less  quantity  of  water  is  now  vented 
than  formerly. 

The  j)laintiff'8  mill  and  dam  situated  some  distance  below,  on 
the  same  stream,  was  built  in  1844.  The  defendant's  privilege 
and  dam  have  been  occu[)ied  and  enjoyed  by  him  and  those  under 
whom  he  dfrives  his  title  for  a  much  longer  period  than  is  neces- 
sary to  acquire  an  adverse  title  by  prcscri|)tioii.  Without  de- 
tailing the  evidence  we  think  it  is  satisfactorily  proved  that  the 
defendant  has  all  the  rights  which  prior  occu[)ancy  can  give  as 
well  as  those  which  can  be  acquired  by  prescription,  so  far  as 
regards  the  heiL'ht  of  his  dam. 

The  defendant  then  has  a  right  to  keep  and  maintain  his  dam 
at  its  present  height  with  all  water  necessary  to  propel  his 
machinery.  But  of  this  the  plaintiff  makes  no  complaint.  The 
defendant  claims  the  right  to  retain  water  not  needed  in  any 
way  for  the  use  of  his  mill,  nor  necessary  for  its  full  enjoyment, 
and  to  the  loss  and  injury  of  those  whose  mills  are  below  him  on 
the  same  stream. 

The  defendant  owning  the  privilege  above,  and  being  the  first 
occupant  upon  the  stream,  has  a  prior  right  to  all  the  water  nec- 
essary to  propel  his  machinery.  But  while  this  right  is  sustained 
and  protected  he  must  use  the  water  in  a  reasonable  and  proper 
manner,  having  regard  to  the  like  reasonable  use  by  all  the  pro- 
prietors above  and  below.  He  cannot  unnecessarily,  and  at  his 
own  will  and  pleasure,  detain  the  water  an  unreasonable  length 


45)4  INCORPOREAL  HERKDITAMENTS. 

of  time,  nor  cli8char«:;e  it  in  such  excessive  quaiitit}*  that  it  would 
eiulauger  those  below.  Every  ovvnei"  of  mills  above  is  required 
so  to  use  the  water  that  every  riparian  proprietor  below  shall 
have  the  enjoyment  of  it  substantially,  according  to  its  natural 
flow,  but  subject  to  the  necessary  and  unavoidable  interruption 
arising  from  its  reasonable  and  proper  use  by  the  privilege 
ul)ove.  It  cannot  be  unnecessarily  and  wantonly  detained. 
Each  riparian  proprietor  on  a  running  stream,  whether  above  or 
below,  has  a  right  to  the  reasonal)le  use  and  enjoyment  of  the 
water,  and  to  the  natural  flow  of  the  stream,  subject  to  such  dis- 
tutbance  and  the  consequent  inconvenience  and  annoyance  as 
might  result  to  him  from  a  reasonable  use  of  the  waters  by 
others.  The  owner  of  a  mill  and  dam  has  a  right  to  the  reason- 
able  use  of  the  water,  but  he  must  detain  it  no  longer  than  is 
necessary  for  its  profitable  enjoyment,  and  then  return  it  to  its 
natural  channel.  A  wanton  or  vexatious  or  unnecessary  deten- 
tion would  render  the  mill-owner  so  detaining  liable  in  damages  to 
those  injured  by  such  unlawful  detention.  Hetrich  v.  Deachler, 
6  Barr.  32  ;  Davis  v.  Winslow,  51  Maine,  264  ;  Davis  v.  Getchell, 
50  Maine,  602.  In  all  these  cases  the  question  is  whether  or 
not  the  use  has  been  reasonable.  Thurl)er  v.  Martin,  2  Gray, 
396;  Pool  t>.  Lewis,  5  American  Rep.  (41  Ga.  162)  526;  Holden 
V.  Luke  Co.,  43 N.  H.  654  ;  Washb.  on  Easements,  268  ;  Spring- 
field V.  Harris,  4  Allen,  496. 

So  far  as  the  defendant  or  those  under  whom  he  derives  his 
title  have  by  artificial  means  improved  the  stream,  those  improve- 
ments inure  to  the  benefit  of  those  below.  The  result  is  that  the 
defendant  has  a  right  to  use  the  water  in  his  pond  for  the  run- 
ning of  all  the  machinery  upon  his  dam.  Has  a  right  to  detain  it 
when  required  for  the  reasonable  use  of  his  mill.  His  rights  are 
prior  and  superior  to  those  of  the  plaintiff.  But  he  cannot  be 
permitted,  in  mere  wantonness,  to  detain  water  not  to  be  used, 
and  of  which  there  is  no  need  whatever  in  the  running  of  his  mill. 

The  question  of  reasonable  use  of  the  water  is  one  of  fact,  to 
be  determined  by  the  jury.  The  parties  have  referred  that 
question  to  the  court.  Upon  the  whole  evidence  we  are  of  the 
opinion  that  the  defendant  has  unreasonably  withheld  water, 
neither  necessary  nor  required  for  the  use  of  his  mill.  Accord- 
ingly there  must  be  judgment  for  the  plaintiff  for  $25  damages. 


Conflicting  Wells  —  Subterranean  Currents  —  Pollution. 

Collins  V.  Chartiers  Val.  Gas  Co.,  131  Pa.  St.  143;  18  A.  1012. 

Mitchell,    J.     The  dividing   line  between  the   right  to  use 
one's  own,  and  the  duty  not  to  injure  another's,  is  one  of  great 


CONFLICTING  WELLS SUBTERRANEAN    CURRENTS.  495 

nicety  and  importance,  and  frequently  of  difficulty.  The 
Pennsylvania  decisions  liiive  endeavored  with  uuu-^ual  care  to 
preserve  the  substance  of  both  rights,  as  far  as  their  sometimes 
inevitable  conflicts  may  permit.  With  regard  to  the  use  and 
control  of  flowing  water  and  of  water-couises,  the  case  of  Coal 
Co.  V.  Sanderson,  113  Pa.  St.  126;  6  At!.  Rep.  453;  definitively 
settled  the  rule  that  for  unavoidable  damage  to  another's  land, 
in  the  lawful  use  of  one's  own,  no  action  can  be  maintained. 
No  other  result  seems  possible,  without  restricting  the  uses,  dero- 
gating from  the  full  enjoyment,  and  diminishing  the  value  of 
property.  But  the  rule  does  not  go  beyond  proper  use  and  un- 
avoidable damage.  It  is  thus  clearly  expressed  in  the  opinion 
of  our  Brother  Clark  :  "  Every  man  has  the  right  to  the  natural 
use  and  enjoyment  of  his  own  property;  and  if,  while  lawfully 
in  such  use  and  enjoyment,  without  negligence  or  malice  on  his 
part,  an  unavoidable  loss  occurs  to  his  neighbor,  it  is  damnum 
absque  injuria."  113  Pa.  St.  146  ;  6  Atl.  Re]).  457.  That  this 
is  the  rule  as  to  surface  streams  was  conceded  by  the  defendants 
below;  but  they  contended  that  as  to  subterranean  waters,  or  at 
least  as  to  percolations  and  hidden  streams,  an  owner  was  not 
bound  to  pay  any  attention  to  the  eff'ect  of  his  (»perations  within 
his  own  land  upon  the  land  of  others.  The  learned  judge  below, 
though  seeing  and  expressing  the  foice  of  the  reasons  for  a  uni- 
form rule  a{)plicable  to  both  classes  of  waters,  felt  himself  so 
far  constrained  by  adjudicated  cases  that  he  directed  a  verdict  for 
the  defendant.  We  have  therefore  to  examine  the  cases  to  see 
what  the  true  distinction  is  between  surface,  or  visible,  and 
subterranean  waters,  and  whether  different  principles  are  appli- 
cable to  the  riglits  in  them  respectively,  or  the  same  principle, 
with  only  such  modifications  as  may  be  necessary  in  practical 
application. 

In  Wheatley  v.  Baugh,  25  Pa.  St.  528,  the  plaintiff  had  a 
spring  upon  his  property,  which  he  had  used  in  his  tannery  for 
more  than  21  years,  when  the  defendant  opened  a  mine  on  his 
adjacent  land,  and  put  in  a  steam-pump  to  take  out  the  water,  with 
the  result  of  drying  up  the  plaintiff''s  spring.  It  was  held  that 
plaintiffhad  no  cause  of  action.  This  case  settled  the  law  on  the 
subject  of  percolating  waters,  and  has  not  since  been  questioned. 
It  was  followed  in  Haldeman  v.  Bruckhart,  45  Pa.  St.  514,  but 
was  restated  rather  narrowly  by  Justice  Strong,  thus:  "  In  that 
case  it  was  ruled  that  where  a  spring  depends  for  its  sujJi)ly  upon 
filtrations  or  percolations  of  water  through  the  land  of  an  owner 
above,  and,  in  the  use  of  the  land  for  mining  or  other  lawful 
purposes,  the  spring  is  destroyed,  such  owner  is  not  liable  for 
the  damages  thus  caused  to  the  proprietors  of  the  spring,  unless 


496  INCORPOREAL  HERKDITAMENTS. 

the  injury  was  occasioned  by  malice  or  negligence.  To  such 
percolations  or  filtrations,  then,  the  inferior  owner  has  no  right. 
This  was  all  that  was  necessary  to  the  decision  of  the  case." 
He  then  criticises  the  rest  of  the  opinion  in  Wheatley  v.  Baugh 
as  dicfuiUy  and  formulates  the  rule  again  in  the  following  terms: 
"  A  proprietor  of  land  may,  in  the  proper  use  of  his  land  for  min- 
ing, quarrying,  building,  draining,  or  any  other  useful  purpose, 
cut  off  or  divert  subterraneous  water  flows  through  it  to  the  land 
of  his  neighbor,  without  any  responsibility  to  that  neighbor." 
These  forcible  statements  of  the  rule  are,  as  I  apprehend,  the 
main  ground  of  the  contention  on  behalf  of  the  defendant 
in  the  present  case,  —  that  an  owner  is  not  bound  to  pay  any 
regard  to  the  eff*ect  of  his  operations  on  subterranean  waters. 
But  this  contention  overlooks  the  qualification  made  in  all  the 
cases,  —  that  there  must  be  no  negligence.  The  opinion  of 
Chief  Justice  Lewis  in  Wheatley  v.  Baugh,  is  as  able,  elaborate, 
and  convincing  a  discussion  of  the  subject  as  can  be  found  re- 
ported, and  in  it  the  necessary  and  unavoidaI)le  character  of  the 
damage  is  implicitly  insisted  on:  "When  the  filtrations  are 
gathered  into  suflScient  volume  to  have  an  appreciable  value  and 
to  flow  in  a  clearly-defined  channel,  it  is  generally  possible  to  see 
it,  and  to  avoid  diverting  it  without  serious  detriment  to  the 
owner  of  the  land  through  which  it  flows.  But  percolations 
spread  in  every  direction  through  the  earth,  and  it  is  impossible 
to  avoid  disturbing  them  without  relinquishing  the  necessary 
enjoyment  of  the  land."  Page  532.  '*  The  owner  of  a  spring, 
although  his  right  is  imperfect  where  the  supply  is  derived 
through  his  neighbor's  land  has  nevertheless  a  privilege  subor- 
dinate only  to  the  paramount  rights  of  such  neighbor;  and  it  is 
only  when  the  fair  enjoyment  of  those  paramount  rights  requires 
its  destruction  that  he  is  bound  to  submit  to  the  deprivation." 
Page  535.  And  even  in  Haldeman  v.  Bruckhart,  which  is  the 
most  strongly  expressed  of  all  the  decisions  in  favor  of  the  rights 
of  the  proprietor  on  his  own  land,  it  is  clear  that  the  same 
qualification  is  not  lost  sight  of,  although  not  prominently 
put  forward.  *'  A  surface  stream,"  says  Strong,  J.,  "  cannot 
be  diverted  without  knowledge  that  the  diversion  will  affect 
a  lower  proprietor.  Not  so  with  an  unknown  subterraneous 
percolation  or  stream.  One  can  hardly  have  rights  upon 
another's  land  which  are  imperceptible,  of  which  neither  himself 
nor  that  other  can  have  any  knowledge.  *  *  *  These 
appear  to  us  very  sutEcient  reasons  for  distinguishing  between 
surface  and  subterraneous  streams,  and  denying  to  interior  pro- 
prietors any  right  to  control  the  flow  of  water  in  unknown  sub- 
terranean channels  upon  an  adjoiner's  land.     They  are  as  appli- 


CONFLICTING   WELLS — SUBTERRANEAN    CURRENTS.  497 

cable  to  unknown  sub-surface  streams  as  they  are  to  filtrations 
and  percolations  through  small  interstices."  And  in  Lybe's 
Appeal,  106  Pa.  St.  G34,  it  is  said:  "  The  rule  is  that,  wherever 
the  stream  is  so  hidden  in  the  earth  that  its  course  is  not  dis- 
coverable from  the  surface,  there  can  bo  no  such  thing  as  a  pre- 
scription in  favor  of  an  adjacent  proprietor  to  have  an  uninter- 
rupted flow  of  such  stream  through  the  land  of  his  neighbor. 
On  the  other  hand,  where  the  subterranean  water  is  not  hidden, 
but  has  a  defined  flow,  which  is  known  or  ascertainable,  rights  in 
it  will  be  treated  on  the  same  basis  as  rights  in  a  surface  stream. 
Whetstone  v.  Bowser,  29  Pa.  St.  59. 

It  is  therefore  clear,  from  the  principles  and  the  reasoning  of 
all  the  cases,  that  the  distinction  between  rights  in  surface  and  in 
t^ubterranean  waters  is  not  founded  on  the  fact  of  their  location 
above  or  below  ground,  but  on  fact  of  knowledge,  actual  or  rea- 
sonably acquirable,  of  their  existence,  location,  and  course.  The 
jirinciple  of  Coal  Co.  v.  Sanderson  is  precisely  the  same  as  that 
of  Wheatley  v.  Baugh,  and  is  of  general  application.  It  is  that 
the  use  which  inflicts  the  damage  muvst  be  natural,  proper,  and 
free  from  negligence,  and  the  damage  unavoidable.  On  the 
question  of  negligence,  the  question  of  knowledge  is  always  im- 
portant, and  may  be  conclusive.  Hence  the  practical  inquiry 
is —  Fi7'st,  whether  the  damage  was  necessary  and  unavoidable; 
secondly,  if  not,  was  it  sufficiently  obvious  to  have  been  foreseen, 
and  also  prevental)le  by  reasonable  care  and  expenditure?  In 
Coal  Co.  V.  Sanderson  the  damage  was  unavoidal)le.  In  Wheat- 
ley  V.  Baugh  it  was  not  ascertained  beforehand  ;  hence  the  plain- 
tiff had  no  cause  of  action  in  either  case.  Later  cases,  following 
Wheatley  v.  Baugh,  have  held  that  injury  to  springs,  wells,  etc., 
supplied  by  mere  percolation,  was  not  actionable  ;  and  the  reason 
has  always  been  the  same,  —  that  the  damage  could  not  be  fore- 
seen or  avoided.  If  the  boundaries  of  knowledge  have  been  so 
enlarged  as  to  make  an  end  of  the  reason,  then  cessa)ite  ratione, 
cessat  ipsa  lex.  Geology  is  progressive,  and  now,  in  many  re- 
spects, a  practical  science;  and,  as  truly  remarked  by  the 
learned  judge  below,  in  his  oi)inion  on  the  motion  for  a 
new  trial,  "  since  the  decisions  in  Acton  v.  Blundell,  12 
Mees.  &  W.  324,  and  Wheatley  v.  Baugh,  probably  more 
deep  wells  have  been  drilled  in  Western  Pennsylvania  than 
had  previously  been  dug  in  the  entire  earth  in  all  time.  And 
that  which  was  then  hehl  to  be  necessarily  unknown,  and 
merely  speculative,  as  to  the  flow  of  water  underground,  has 
been,  by  experience  in  such  cases  as  this,  reduced  almost  to 
a  certainty."  If  this  is  the  state  of  knowledge  at  the  present 
day  ;  if  the  existence  of  a  stratum  of  clear  water,  and  its  flow 

32 


498  INCORPOKEAL    IIERKDITAMENTS. 

into  wells  aiul  springs  of  the  vicinity,  and  the  existence  of  a 
separate  and  deeper  stratum  of  salt  water,  which  is  likely  to  rise 
and  mingle  with  the  fresh,  when  penetrated  in  boring  for  oil  or 
gas,  are  known,  and  the  means  of  preventing  the  mixing  are 
available  at  reasonable  expense — then,  clearly,  it  would  bo  a 
violation  of  the  living  spirit  of  the  law  not  to  recognize  the 
change,  and  apply  the  settled  and  ininuitahlo  principles  of  right 
to  the  altered  conditions  of  fiict.  The  learned  judge,  in  his 
charge,  said;  ♦'  There  is  evidence  from  which  the  jury  could 
fairly  find  that  the  defendant,  when  the  well  was  drilled,  knew, 
or  ought  to  have  known,  if  they  had  exercised  any  reasonable 
judgment,  or  investigated  or  paid  attention  to  it,  that  tlie  bor- 
ing of  this  well  in  the  way  it  was  done,  without  shutting  off  the 
salt  water  from  the  fresh  water,  would  almost  inevitably  ruin 
these  and  other  wells  in  the  immediate  vicinity.  And  I  think 
there  is  evidence  from  which  the  jury  could  fairly  find  that  the 
defendant  could  with  the  outlay  of  a  small  amount  of  money, 
have  shut  off  the  salt  water  from  the  fresh  water  so  that  it  could 
not  have  done  any  injury."  If  the  jury  had  found  the  facts  as 
this  charge  assumes  that  they  fairly  might  on  the  evidence,  then 
the  plaintiff  had  made  out  a  case  of  negligence,  and  was  entitled 
to  recover.  Negligence  in  this  sense  is  the  absence  of  such  care 
and  regard  for  the  rights  of  others  as  a  prudent  and  just  man 
would  and  should  have  in  the  same  situation.  If  the  plaintiff 
showed  that  the  injury  was  plainly  to  be  anticipated,  and 
easily  preventable  with  reasonable  care  and  expense,  he  brought 
himself  within  the  exception  of  all  the  cases  from  Wheatley  v. 
Baugh  to  Coal  Co.  v.  Sanderson,  inclusive.  It  may  be  well  to 
say  that  in  cases  of  this  nature,  juries  should  be  held  with  a 
firm  hand  to  real  cases  of  negligence  within  the  exception,  and 
not  allowed  to  pare  down  the  general  rule  by  sympathetic 
verdicts  in  cases  of  loss  or  hardship  from  the  proper  exercise 
of  clear  rights.  The  danger  of  such  result  is  not  to  be  ignored, 
but  we  cannot  on  that  account  shut  the  door  to  suitors  entitled 
to  redress  for  genuine  wrongs.  The  duty  to  maintain  the  line 
firmly  where  justice  and  law  put  it  is  in  the  first  instance,  and 
chiefly,  upon  the  trial  courts.  Judgment  reversed,  and  venire 
de  novo  awarded. 


Party  Wall  —  Use  of   Same  —  Construction    of    Contract    for 
Building  the   Same. 

Fox  V.  Mission  Free  School,  120  Mo.  349;  25  S.  W.  172. 

Appeal  from   St.   Louis  circuit  court;    James    E.    Withrow, 
Judge. 


CONSTRUCTION    OF    CONTRACT    FOR    BUILDINO    PARTY    WALL.     4i)9 

Action  by  Hugh  L,  Fox  agiinst  the  Missouri  Free  School  on 
a  party-wall  contract.  Judgment  for  defendant.  Phiintiff 
appcids.      Affirmed. 

Macfarlane,  J.  Plaintiff  and  defendant  were  the  owners  of 
contiguous  lots,  fronting,  each  about  65  feet,  on  the  .«outh  side 
of  St.  Charles  street,  in  the  city  ot"  St.  Louis,  and  extending 
back  south  about  111  feet  to  an  alley.  Previous  to  making  the 
contract  which  is  the  basis  of  this  suit,  a  three-story  brit-k  build- 
ing, of  the  full  width  of  the  lot,  and  extending  back  to  within 
about  7  feet  of  the  alley,  stood  ui)on  defendant's  lot.  This 
building  was  leased  and  used  as  a  gymnasium.  The  7-foot  space 
between  the  bniUling  and  the  alley  was  occupied  by  one-story 
structures.  About  40  feet  on  the  east  was  constructed  of  brick, 
and  used  for  an  engine  and  boiler  room  ;  and  the  remaining  por- 
tion, about  25  feet,  on  the  west,  and  adjoining  plaintiff's  build- 
ing-, was  built  of  wood,  and  was  used  for  stoiingr  (;oal.  The  first 
and  second  stories  of  the  main  building  were,  for  the  convenience 
of  the  gymnasium,  used  as  one.  Plaintiff  previously  had  a 
three-story  building  covering  width  of  his  entire  lot.  On  the 
dividing  line  of  these  lots  there  was  no  parting  wall,  but 
each  building  was  supported  l)y  its  own  wall,  built  whollj^ 
on  the  land  of  the  respective  owners.  Plaintiff,  with  a 
view  of  erecting  a  seven-story  building  on  his  lot,  had  removed 
his  building  therefrom,  and  proposed  to  defendant  the  erection 
of  a  partition  wall  between  their  lots.  Negotiations  resulled 
in  a  written  contract,  dated  .July  31,  1888.  This  contract 
recited  first  the  res[)ective  ownership  of  the  contiguous  lots,  de- 
scribing each  ;  that  plaintiff  was  about  erecting  upon  his  lot  a 
store  house  building,  seven  stories  in  height  above  the  basement ; 
and  that  it  was  desired  by  the  paities  that  the  east  wall  of  said 
building  so  to  be  erected  should  be  a  party  wall,  '♦  and  that  the 
center  line  thereof  should  be  coincident  with  the  division  line  be- 
tween the  two  adjacent  lots,"  and,  in  consideiation  of  the  prem- 
ises, it  was  agreed  as  follows  :  "  That  Fox  shall  construct  the 
east  wall  of  his  said  proposed  building  at  his  own  cost  and  ex- 
pense, so  that  the  center  or  middle  line  of  said  wall  shall  cor- 
respond and  be  coincident  with  the  line  dividing  the  lots  afore- 
said of  the  parties,  and  that  said  wall  shall  be  of  the  dimensions, 
materials,  and  constructed  in  the  manner  following,  viz."  Then 
follow  the  specifications  for  building  the  wall,  which  was  to  ex- 
tend the  whole  length  of  the  line,  to  be  of  brick,  25  inches  tiiick 
for  a  height  of  33  feet,  thence  up  23  inches  thick  for  28  feet, 
thence  up  18  inches  thick  for  26  feet,  and  thence  up  13 
inches  thick  for  the  remaining  distance;  "one  smoke  flue 
to   be  built  in  said    wall,  and  in  every  story  to  have  a  thick- 


500  INCORPORKAL    IIEIIEDITAMENTS. 

iiess  of  13  inches  between  flue  iincl  outside  surface  of  wall; 
and  no  other  flues,  slats,  or  chaees  to  be  built  or  cut  in  the  wall 
by  said  Fox."  These  provisions  were  then  agreed  upon  :  ••  That 
the  said  wall  so  constructed  as  aforesaid,  shall  be  u.ied  in  com- 
mon by  both  of  the  parties  hereto,  and  their  rcs[)eclivc  heirs, 
successors  or  assigns,  as  a  '  party  wall  '  for  the  support  of  the 
said  building,  or  any  addition  thereto,  so  about  to  be  erected  by 
said  Fox,  and  of  any  building  which  said  party  of  the  second  part, 
its  successors  or  assigns,  may  at  anytime  hereafter  erect  upon  the 
premises  so  owned  by  it  as  aforesaid  :  [jrovided,  however,  and 
said  party  of  the  second  part  stipulates  and  agrees,  that  when- 
ever it  shall  make  use  of  said  'party  wall'  as  a  wall,  and  for 
the  support  of  any  building  which  may  hereafter  be  constructed 
on  its  said  premises,  it  shall  pay  to  the  said  Fox,  or  his  assigns, 
before  making  such  use  thereof,  the  sum  of  three  thousand  and 
forty-four  dollars  and  eighty  cents  ($3,044.80).  It  is  further 
agreed  that  either  of  said  parties,  at  his  of  its  own  cost  and 
expense,  may  alter,  tear  down,  and  rebuild,  reconstruct,  or  add 
to  the  said  party  wall,  in  the  event  the  same  be  rendered  neces- 
sary at  any  time  by  fire,  accident,  casualty,  or  decay  ;  pro- 
vided, however,  that  the  party  so  doing  the  same  shall  give  to 
the  other  party  ten  days'  written  notice  of  the  intention  so  to 
do,  and  shall  hold  the  other  harmless  and  indemnified  against 
any  loss  or  damage  resulting  therefrom.  It  is  understood,  how- 
ever, by  the  parties  hereto,  that  this  agreement  does  not  authorize 
said  Fox  to  erect  said  wall,  or  in  any  manner  to  impair  or  aftect 
the  rights  of  the  Missouri  Gymnastic  Society  under  its  lease  of 
the  said  premises  owned  by  said  party  of  the  second  part,  dur- 
ing the  unexpired  term  of  said  lease,  without  consent  thereto  of 
said  lessee  being  first  obtained  by  said  Fox."  The  suit  was 
upon  this  contract.  The  petition  charged  that  plaintiff  had  built 
the  wall  according  to  agreement,  and  without  in  any  manner 
impairing  or  affecting  the  rights  of  the  gymnastic  society,  the 
tenants  of  defendant.  "  That  in  constructing  said  wall  the 
plaintiff  left  openings  therein  for  the  joists  or  timbers  of  the 
building  on  defendant's  lot  occupied  by  said  Missouri  Gymnas- 
tic Society,  and  with  the  knowledge  and  consent  of  said  Missouri 
Gymn.istic  Society,  and  of  the  defendant  herein,  inserted  the 
joists  or  timbers  supporting  the  said  roof  and  building  of  said 
Missouri  Gymnastic  Society,  and  then  and  now  owned  by  the 
defendant,  the  Mission  Free  School.  That  thereafter  the  said 
defendant  did,  by  its  agents  and  employees,  erect  a  new  brick 
building  on  the  rear  of  its  said  lot,  and  in  such  erection  did 
make  use  of  said  party  wall  as  a  wall,  and  for  the  support  of  such 
new    brick    building;     and    by  its    agents    and    employees    did 


CONSTRUCTION    OF    CONTRACT    FOR    BUILDING    PARTY    WALL.    501 

reconstruct  tho  old  building  on  said  premises,  owned  by  it, 
and  formerly  occupied  by  the  said  Missouri  Gymnastic  So- 
ciety, and  in  such  reconstruction  did  make  use  of  said  party 
wall  as  a  wall,  and  for  the  support  of  said  reconstructed  build- 
ing. Pljiintiff  further  states  that  in  reconstructing  the  said  old 
building  the  said  defendant,  by  its  agents  and  employees,  '  an- 
chored '  or  '  tied  '  the  walls  of  said  reconstructed  building  into 
the  said  party  wall,  for  the  purpose  of  obtaining  support  for 
said  reconstructed  building,  and  said  reconstructed  building  is 
now  sustained  and  supported,  in  whole  or  in  part,  by  said  party 
wall.  And  plaintiff  further  alleges  that  said  party  wall  is  now 
being  used,  in  whole  or  in  part,  by  the  said  defendant,  or  its 
agents  and  employees,  as  a  party  wall,  and  for  the  support  of  the 
said  new  brick  building  aforesaid,  and  for  the  support  of  said 
reconstructed  building,  which  latter  plaintiff  avers  is  to  all 
intents  and  purposes  a  new  building,  within  the  meaning  and 
purview  of  said  contract."  Judgment  was  prayed  for  $3,044.80 
and  interest.     The  answer  was  a  general  denial. 

On  the  trial  the  execution  of  the  contract,  and  the  proper 
construction  of  the  wall  according  to  contract,  was  not  called 
into  question.  It  was  shown  that  defendant's  old  wall  was  taken 
out  in  order  to  make  way  for  the  party  wall,  and  the  building  was 
properly  supported  until  attached  to  the  party  wall,  which  there- 
after supported  it.  The  third  story  of  the  south  end  of  defend- 
ant's building  was  of  corrugated  iron,  the  first  and  second  stories 
were  of  brick,  but  were  cracked  and  weak.  Thef  ront  or  north  wall, 
from  about  six  feet  east  of  the  party  wall,  was  cracked  from  the 
top  down,  perpendicularly,  to  the  base  stone  of  the  lower  window. 
This  crack  was  from  a  half  to  three-fourths  of  an  inch  in  width, 
and  in  consequence  the  wall  leaned  toward  plaintiff's  lot.  Where 
the  party  wall  was  completed,  the  outside,  which  became  the 
inside  wall  of  defendant's  building,  presented  the  usual  appear- 
ance of  a  rough,  outside  brick  wall.  The  gymnastic  society 
occupied  defendant's  building  for  two  years  after  the  wall  was 
built,  after  which  it  was  rented  to  A.  C.  Wickham  for  a  bakery 
and  restaurant  for  a  term  often  years.  The  tenant  was  author- 
ized to  make  permanent  improvements  and  additions,  and  to 
make  repairs  on  the  premises  at  his  own  expense.  Wickham 
proceeded  to  make  repairs  and  improvements  on  the  property  in 
order  to  adapt  it  to  his  proposed  uses.  In  order  to  repair  the 
crack  in  the  front  wall  he  began  at  the  cornice  of  the  building, 
at  the  top  of  the  wall,  and  removed  the  wall  down  to  the  base 
stone  of  the  lowest  window  near  the  sidewalk.  This  left  a  por- 
tion of  the  wall  standing  between  the  breach  thus  made  and  Fox's 
party  wall.     He  took  off  the  top  of  that  portion  of  the  wall, 


502  INCORPOREAL  HEREDITAMENTS. 

down  to  a  level  with  the  top  of  the  highest  window,  leaving  an  open 
space  just  below  the  cornice,  over  to  the  party  wall.  He  then  huilt 
the  breach  up  to  the  top  of  that  window,  and  up  to  the  ()i)en  space 
running  over  to  Fox's  wall,  and  then  built  a  solid  wall  across  (he 
breach  above  the  window  to  the  party  wall.  He  then  cut  out  a 
portion  of  the  party  wall  16  inches  one  way  and  20  inches  the 
other.  The  depth  of  this  incision  is  not  shown  by  the  evidence. 
In  this  incision  was  carried  the  top  of  Wickhani's  new  wall,  just 
beneath  the  cornice,  with  cemented  bricks,  where  it  was  held. 
He  plastered  the  party  wall  from  the  ceiling  to  the  floor.  The 
plaster  had  a  white  finish.  He  placed  and  supported  wainscot- 
ing on  this  wall  the  full  length  of  the  room.  He  hung  gas  fix- 
tures and  coat  and  hat  racks  on  it,  and  fastened  to  it  brackets 
underneath  the  girders,  to  give  the  room  an  oval  and  dome-like 
appearance  at  the  ceiling.  He  constructed  a  partition  across  the 
building  in  front  of  the  cross  wall,  which  was  sustained  by  being 
nailed  to  the  party  wall.  He  took  out  entirely  about  30  feet  of 
the  north  wall,  leaving  3  or  4  feet  next  to  Fox's  wall  to  serve 
the  purpose  of  a  pier.  Across  this  opening,  from  this  pier,  he 
threw  a  girder  to  support  the  biick  wall  above,  so  as  to  leave 
an  open  space  underneath  where  there  had  been  previously  the 
solid  wall.  He  removed  the  old  frame  coal  house  altogether, 
and  rebuilt  the  wall  of  the  old  boiler  house,  which  had  been 
in  part  torn  down  by  the  gymnastic  society  in  order  to  remove 
their  boilers.  He  then  built  a  brick  wall  from  the  west  end  of  this 
reconstructed  wall  of  the  boiler  house,  along  the  alley  to  Fox's 
party  wall,  and  there  dovetailed  it  with  cement  joints  into  the  in- 
terstices of  the  rubble  stone  work  of  Fox's  foundation  up  to  the  top 
of  that  foundation.  There  he  lapped  his  brick  wall  over  into  the 
top  of  the  foundation  of  the  party  wall,  which  here  was  an  inch 
and  one-half  to  two  inches  wider  than  the  party  wall ;  thus  pre- 
senting a  shelf  or  shoulder  of  that  width,  upon  which  he  rested 
and  supported  his  brick  wall.  Above  the  foundation  of  the  party 
wall  this  brick  wall  was  joined  and  bonded  to  the  party  wall  by 
cement.  The  party  wall  inclosed  and  formed  the  west  end  of 
this  building,  which,  but  for  the  party  wall,  would  have  been 
open.  A  new  gravel  roof  was  placed  on  this  building,  and  made 
water-tight  against  Fox's  party  wall  by  the  application  of  tar 
paper.  These  are  the  facts  plaintiff's  evidence  tended  to  prove 
as  set  up  in  appellant's  statement.  At  the  close  of  the  evidence 
offered  by  plaintiff  the  court  directed  the  jury  to  return  a  verdict 
for  defendant.  Plaintiff  took  a  nonsuit,  and,  after  an  inefl'ect- 
ual  motion  to  set  aside  the  same,  appeals  to  this  court. 

The  contract  is  the  basis  of  plaintiff's  action,  and  his  right  to 
recover  must  be  found  therein.     The  question,  then,  is,  was  there 


CONSTRUCTION  OF  CONTKACT  TOIl  I5UILDIXO  PARTY  WALL.      503 

evidence  introduced  on  the  trial  wiiich  tended  to  prove  that  defend- 
ant nuide  use  of  the  party  wall  as  a  wall  for  the  support  of  a 
building  thereafter  constructed  on  the  premises  by  it  or  by  its 
periuission?  Plaintiff  argues  —  first,  that  the  use  of  the  party 
wall  in  support  of  the  old  building  was  equivalent  to  the  con- 
struction of  a  new  building,  within  the  spirit  of  the  contract; 
second,  that  the  new  uses  to  which  the  wall  was  applied  by 
defendant  in  the  construction  of  its  building  was  a  use  as  a  i)arty 
wall,  and  defendant  is  bound  by  such  use  to  the  same  extent  as 
it  would  have  been  had  the  use  been  to  support  a  new  building; 
and,  third,  that  the  construction  of  the  coal  house  and  its  sup- 
port by  the  party  wall  was  the  construction  of  a  building  within 
the  express  terms  of  the  contract. 

1.  We  are  of  the  opinion  that  the  contract  clearly  contem- 
plated that  the  party  wall  should  be  used  in  the  support  of  the 
old  building.  The  agreement  must  be  interpreted  by  the  con- 
dition of  the  property  at  the  time  it  was  made.  At  that  time 
defendant  had  on  its  premises  a  complete  building,  su[)ported  by 
its  own  four  walls.  The  east  wall  was  on  the  line  of  its  own 
property.  Under  the  contract  the  party  wail,  one- half  of  which 
was  required  to  be  on  defendant's  land,  would  necessarily  occupy 
the  space  of  the  east  wall  of  defendant's  building,  and  required 
its  entire  removal.  Defendant's  building  would  therefore  have 
been  left  entirely  without  sup})ort  on  that  side,  unless  it  was 
attached  to  the  party  wall.  The  contract  provided  that  the  erec- 
tion of  the  party  wall  should  in  no  manner  impair  or  afiect  the 
rights  of  the  tenants  then  occupying  defendant's  buildinof.  These 
facts  plainly  imply  that  the  new  wall  should  be  used  as  a 
party  wall  for  the  old  building,  and  that,  too,  without  charge, 
until  another  building  should  be  constructed  on  the  premises. 
This  was  also  clearly  the  construction  given  to  the  contract  by 
the  parties  themselves.  In  building  the  party  wall  the  old  build- 
ing was  built  into,  and  attached  to  it,  and  it  was  thereby  sup- 
ported, and  no  claim  for  compensation  was  made.  The  plain 
interpretation  of  the  contract  therefore  is  that  defendant  should 
have  the  use  of  the  wall  for  the  support  of  its  old  building,  and 
should  incur  no  liability  until  it  thereafter  constructed  a  building 
upon  the  premises.  We  find  that  like  construction  has  been 
given  a  similar  agreement  under  like  circumstances.  Shaw  v. 
Hitchcock,  119  Mass.  254.  Though,  in  the  absence  of  a  con- 
tract, the  use  of  the  wall  for  the  support  of  the  old  building 
might,  from  the  conduct  of  the  parties,  imply  an  agreement  to 
pay  a  proper  proportion  of  the  cost  thereof,  no  such  implication 
can  be  raised  under  this  contract,  which  expressly  provides  the 
condition  upon  which  payment  can  be  demanded. 


504  INCORPOREAL    HEREDITAMENTS. 

2.  There  can   be  no   doubt,  under  the  terras  of  the  contract, 
that  the  wall  built  by  plaintiff  became,  as  soon  as  completed,  a 
party  wall    for    the  support  of  the    building    erected    by    him, 
and   defendant  had    no  right  to  make  any  use  of   the  portion 
situate    on    his    land     which    would    impair    its    strength    and 
efficiency   for  that  purpose.     The  contract    created  in  each  of 
the    parties  reciprocal  easements  in  the    wall  when   built.     As 
has    been  said    "the    idea    of    reciprocity    pervades  the  whole 
contract,"  and  neither  party  can  use  the  wall  in  such  a  man- 
ner as    would  interfere  with   the  proper  and  effective   use    by 
the   other.     Harber  v.  Evans,    101  Mo.    665 ;  14  S.    W.    750. 
While  this  idea  of  mutuality  of  benetit  and  of  right  applies  to 
the  wall  itself,  as  it  gives  support  to  the  respective  buildings,  it 
does  not  prevent  the  parties  from  using  the  surface  of  the  walls 
in  such  manner  as  the  business,  comfort,  or  taste  of  each  may 
require,   so   long  as  its  efficiency  as  a  support  is  not  impaired. 
If  business  uses  required  shelving  to  be  attached  to  the  wall,  or 
if    comfort   or  taste  require  that   the  surface   be    plastered   or 
painted,   or  that  pictures  be  hung  upon  it,  the  mutual  rights  of 
the    parties    in    the    wall    would    not    suffice  to  prevent    these 
improvements   or  ornamentations   so  long  as  they  did  not  mate- 
rially weaken  the  support.     In  other  words  "  one  of  the  joint 
owners  of  a  party   wall  can  do  any  act  concerning  it  which  he 
desires,  so  long  ^s  he  does  not  injure  the  property  of  the  other." 
Lloyd  Bldg.   Cont.,    §   185.     If,  as  held  in  the  preceding  para- 
graph, the    parties  intended  that  the   wall  should  support  de- 
fendant's old    building,  in    lieu  of  its    wall,  which  was   neces- 
sarily removed,  then    it    became  a   party   wall,  to    all    intents 
and  purposes,  for    the  support   of    the  old    building,  and  de- 
fendant   had    the    right    without  liability  to    make    all  reason- 
able uses  of  the  old  building.     If  by   improper  use  plaintiff's 
rights   were  interfered  with   or  affected,  he  would  have  to  look 
for  redress  outside  of  the  contract.     It  necessarily  follows  that 
defendant  had  also  the  right  to   make  necessary  repairs  on  its 
building  without  incurring  liability  under  the  contract.     No  one 
could  reasonal^ly  contend  that  an  owner  could  not  repair  one 
wall  of   his   building  because  another  wall  thereof  was  a  party 
wall.    Aside  from  this,  making  repairs  on  an  old  building  is  a  very 
different  thing  to  constructing  a  building.     The  latter  implies  the 
erection  of  a  new  buildino:.     In  the  same  clause  and  sentence 
of  the  contract  in  which  the  word  "  constructed  "  is  used  the 
parties  also  use,  as  synonymous  thereto,  the  word  "  erected," 
which  leaves  no  doubt  or  ambiguity  as  to  what  is  meant.     That 
the  repairs  to  the  wall  of  the  old  building  were  made  in  such  a 
manner  as  to  give  the  repaired  wall  support  from  the  party  wall 


CONSTRUCTION    OF    CONTRACT    FOIl    KUILDING    PARTY    WALL.      505 

does  not  affect  the  construction  of  the  contract.  It  is  evident 
that  defendant,  at  the  time  it  made  the  contract,  hud  determined 
upon  no  time  for  rebuihling  :ind,  that  it  also  contemphited  con- 
tinuing the  use  of  the  oM  buihling.  The  right  to  make  necessary 
repairs  nmst  be  implied  from  these  circumstances. 

3.  But  it  is  insisted  tjiat  tearing  away  the  wooden  coal  house 
on  the  seven-foot  si)ace  back  of  defendant's  main  building,  and 
making,  in  its  place,  a  one-story  brick  structure,  for  use  as  a 
com!  house,  and  liip[)ing  the  brick  over  the  footings  of  the  stone 
foundation,  joining  the  wall  thereof  to  the  party  wall,  and 
"  dovetailing  it  with  cement  joints  into  the  interstices  of  the 
rubble-stone  work,"  was  the  construction  of  a  building  within 
the  meaning  of  the  contract.  The  u-e  of  the  party  wall  for  the 
support  of  a  building  thereafter  to  be  constructed  was  what  de- 
fendant contracted  for,  and  until  it  did  so  use  it  no  liability  was 
incurred.  The  price  to  be  paid  for  such  use  was  over  $3,000. 
An  independent,  separate  wall  for  the  coal  house  could  have  been 
made  at  the  trifling  cost  of  a  few  dollars.  The  wall  of  the  coal 
house  was  not  built  into  the  party  wall,  though  doubtless  it 
received  support  from  it.  The  contract  says  that  defendant 
shall  be  liable  to  pay  "  whenever  it  shall  make  use  of  the  party 
wall  as  a  wall,  and  for  the  supi)ort  of  any  building  which  may 
hereafter  be  constructed  on  the  premises."  We  think  the  con- 
tract should  be  given  a  reasonable  construction,  and  not  one  to 
which  no  reasonable  business  man  would  have  consented.  It 
might  be  insisted  by  defendant  that  the  words  "  as  a  wall,"  used 
in  the  contract,  meant  that  the  use  of  entire  length  and  height 
of  the  wall  was  intended.  Such  construction  would  be  absurd. 
On  the  other  hand,  a  contention  that  the  contract  means  any 
use  of  the  wall  in  the  construction  of  any  building,  however  in- 
significant, would  be  equally  absurd.  There  are  no  express  words 
which  require  the  adoption  of  either  of  these  unreasonable  con- 
structions. The  languag^e  of  the  contract  is  broad  enough  to 
admit  of  a  reasonable  interpretation.  The  wall,  for  33  feet  in 
height,  was  25  inches  thick,  and  cost  proportionally.  A  sub- 
stantial building  at  the  time  covered  the  whole  of  defendant's  lot 
except  seven  feet  in  the  rear.  When  the  parties  speak  of  a 
building  hereafter  to  be  constructed,  can  there  be  a  doubt  that 
they  had  in  mind  the  construction  of  a  new  building  in  whole  or 
in  part  upon  the  site  of  the  old  one,  and  such  as  would  require 
the  support  of  a  substantial  wall?  The  erection  of  a  substantial 
building,  which  receives  support  from  the  party  wall,  is  what  the 
parties  manifestly  contemplated.  Elliston  v.  Morrison,  3  Tenn. 
Ch.  280.  We  do  not  think  the  improvements  and  repairs  made 
upon  the  premises  amount  to    the    construction   of  a    building 


506  LICENSES. 

thereon,  within  the  meaning  of  tin;  terms  of  the  ooiitruct  or  the 
intention  of  the  parties.  Jiidgiiiuiitatiirmud.  All  concur,  except 
Barclay,  J.,  who  is  absent. 


CHAPTER     XVII. 

LICENSES. 

Village  of  Dwight  v.  Hayes,  150  111.  273;  37  N.  E.  218. 
Lawrence  v.  Springer,  49  N  J.  Eq.  289;  24  A.  933. 

When   Parol  License  is  Revocable. 

Village  of  Dwight  v.  Hayes,  150  111.  273;  37  N.  E.  218. 

Bailey,  J.  This  was  a  bill  in  chancery,  brought  by  John  A. 
Hayes  against  the  village  of  Dwight,  to  restrain  the  village  from 
constructing  a  system  of  sewers  so  that  the  same  will  discharge 
the  sewage  of  the  village  into  Gooseberry  creek,  a  stream  of 
water  running  through  the  complainant's  land.  The  complain- 
ant owns  and  resides  on  a  farm  containing  about  212  acres,  situ- 
ated in  Grundy  County,  and  adjoining  the  south  line  of  the 
county.  The  village  of  Dwight  is  an  incorporated  village,  hav- 
ing a  population  of  about  1,600  and  situated  in  Livingston 
County,  and  about  a  mile  or  a  mile  and  a  half  south  of  the 
south  line  of  Grundy  County,  Gooseberry  creek  has  its  head- 
waters several  miles  south  of  Dwight,  in  two  sejjarate  branches, 
one  of  which  runs  through  the  village,  the  two  forming  a  junc- 
tion about  a  half  mile  below  on  the  land  of  David  McVVilliains, 
and  running  thence  in  a  northerly  direction  iicross  the  complain- 
ant's land,  which  adjoins  that  of  McWilliams  on  the  north,  and 
emptying  into  Mazon  creek.  Gooseberry  creek,  as  the  evi- 
dence shows,  is  a  stream  in  which  water  constantly  flows  except 
during  certain  portions  of  the  dry  weather  in  summer,  and  dur- 
ing that  time  it  contains  pools  of  water  at  different  places  along 
its  channel,  sufficient  in  quantity  and  of  suflicient  purity  to  fur- 
nish drink  for  cattle  and  other  domestic  animals  kept  by  the 
owners  of  the  lands  through  which  it  flows.  The  com[)lainant, 
as  it  appears,  occupies  and  uses  his  land  as  a  stock  farm,  and 
has  been  accustomed,  for  many  years,  to  use  the  cieek  for 
watering  his  stock,  and  he  has  also  been  accustomed,  during  the 
winter  season,  to  take  from  it  his  supply  of  ice  for  use  during 
the   summer.     In   the  summer   of  1892  the   village  of  Dwio-ht 


WHEN    PAROL    LICKNSE    IS    KKVOCABLE.  507 

commenced  the  construction  of  a  system  of  sewers,  which  were 
to  be  so  constructed  as  to  discharge  the  sew;ige  of  the  vilhige 
into  Gooseberry  creek  at  a  point  on  the  hmd  of  McWillianis,  a 
short  distance  below  the  continence  of  the  two  branches  of  the 
creek.  The  cora[)lainant  thereupon  filed  his  hill  to  restrain  the 
viUage  from  discharging  the  sewage  from  its  proposed  system  of 
sewers  into  the  creek,  aUeging  that  there  was  a  constant  supply 
of  living  water  in  the  creek,  sufficiently  pure  and  good  for  stock  ; 
that  the  comi)lainant  was  using  his  farm  as  a  stock  farm,  and 
relied  upoiJ  the  waters  of  the  creek  for  the  purpose  of  watering 
his  stock  ;  and  that  he  cut  ice  therefrom,  and  stored  the  same 
at  his  residence  for  the  use  of  his  family  ;  and  that  the  dis- 
charge of  the  sewage  into  the  cieek  would  render  the  water 
thereof  unfit  lor  the  domestic  uses  above  referred  to,  and  would 
also  cause  noxious  odors  to  spread  over  the  complainant's  farm, 
and  about  his  place  of  residence,  thereby  rendering  the  same 
unhealthfiU  and  uncomfortable  as  a  place  in  which  to  live,  and 
so  would  cause  irrepaiable  damage  to  the  complainant's  premises 
and  place  of  residence,  and  would  create  a  nuisance.  On  the 
filing  of  the  bill  an  injunction  pendente  lite  was  awarded  as 
prayed  for,  and,  an  answer  and  replication  having  been  after- 
Wiii'ds  filed,  the  cause  was  heard  on  i)leadings  and  proofs,  and  at 
such  hearing  a  decree  was  entered  by  the  circuit  court  dismissing 
the  bill  at  the  complainant's  costs  for  want  of  equity,  but  with- 
out piejudice  to  the  complainant's  right  to  prosecute  an  action 
at  law.  On  appeal  by  the  C()m[)lainaiit  to  the  appellate  court,  the 
d«'cree  was  reversed,  and  the  cause  remanded,  with  directions  to 
the  circuit  court  to  enter  a  dectee  in  favor  of  the  complainant 
making  the  injunction  perpetual.  From  the  judgment  of  rever- 
sal the  village  of  Dwight  now  appeals  to  this  court. 

A  large  nuini»er  of  witnesses  were  examined,  and  the  testimony 
in  the  record  is  very  voluminous,  and  to  a  very  considerable 
degree  conflicting.  Among  other  things,  the  opinions  of  many 
witnesses  were  taken  as  to  what  would  be  the  prot)able  effects 
upon  the  waters  of  the  creek,  as  they  flow  across  the  complainant's 
land,  and  upon  the  surrounding  atmosphere,  of  discharging  the 
sewage  of  the  village  into  the  creek  a  short  distance  al)Ove  his 
premises.  While  some  of  these  witnesses  seem  to  be  of  the  opinion 
that  no  serious  pollution  of  the  water  would  result,  and  no  nui- 
sance be  created,  we  concur  in  the  opinion  of  the  appellate  court 
that  the  decided  preponderance  of  the  evidence  sustains  the  con- 
clusion that  the  water  would  thereby  become  so  polluted  as  to 
render  it  unfit  for  domestic  use,  or  for  the  drink  of  domestic 
animals;  and  this  view  is  strongly  reinforced  by  the  inherent 
probabilities  of  the  case.     Such  being  the  case,  there  can  l)e  no 


508  LICENSES. 

doubt,  as  it  seems  to  us,  as  to  the  right  of  the  complainant  to 
relief  in  equity.  As  said  by  Mi\  High,  in  his  treatise  ou  Injunc- 
tions (section  810):  "  Ifroqucut  ground  of  ai)i)licatioii  for  llie 
preventive  aid  of  equity  is  found  in  cases  of  the  pollution  of 
water  by  tlie  flow  of  sewage  from  towns  or  cities  into  streams 
whose  waters  are  thereby  injured  and  rendered  unfit  for  use.  In 
cases  of  this  nature  the  preventive  jurisdiction  of  equity  is  well 
e>tablished,  the  general  doctrine  being  that  the  fouling  or  pollu- 
tion of  water  in  a  stream  by  such  sewage  constitutes  a  nuisance, 
and  affords  sufficient  ground  for  relief  by  injunction.  In  con- 
formity with  this  doctrine,  the  owners  of  land  upon  the  banks  of 
a  river  below  a  city  may  enjoin  the  city  authorities  from  pollut- 
ing the  river  by  sewage."  In  Gould  on  Waters  (section  540) 
the  rule  is  laid  down  as  follows:  "  An  authority  over  sewage 
is  not  au  authority  to  commit  a  nuisance.  An  owner 
of  land  upon  a  stream  below  a  city  is  entitled  to  an 
injunction  against  injury  by  the  outflow  of  sewage.  So, 
an  injunction  will  lie  to  prevent  the  opening  of  additional 
sewers  into  a  stream  in  such  a  manner  as  to  render  the  water 
unfit  for  use,  and  it  is  not  a  defense  that  the  city  can  lawfully 
enter  upon  the  premises  of  those  who  use  the  sewer  for  the  pur- 
pose of  abating  the  nuisance.  And,  if  a  few  householders  upon 
the  stream  have  used  it  as  a  drain,  a  modern  board  cannot  found 
a  prescriptive  right  to  corrupt  the  stream  on  such  usage.  If  any 
nuisance  of  this  kind  be  shown,  though  causing  inconsiderable 
damage,  equity  will  enjoin  its  continuance.  In  deciding  upon 
the  right  of  a  proprietor  to  an  injunction  against  such  a  nuisance, 
the  court  will  not  consider  the  convenience  of  the  public.  The 
fact  that  a  large  population  will  be  affected  by  an  interruption  of 
the  use  of  the  system  of  sewers  is  immaterial,  where  the  rights 
of  an  individual  are  invaded."  See,  also,  Wood,  Nuis.,  §  683 
et  seq.  See  also  Dierks  v.  Commissioners,  142  III.  197;  31  N. 
E.  496.  It  is  true  the  creek  \\\  question  is  not  a  running  stream 
during  all  portions  of  the  year,  but  during  very  dry  weather 
contains  only  small  pools  or  ponds  of  water  standing  in  the 
deeper  places  along  its  channel.  But  this  fact  manifestly  would 
only  tend  to  aggregate  the  nuisance  especially  in  those  places  situ- 
ated, as  is  the  complainant's  land,  but  a  little  distance  from  the 
proposed  point  for  the  discharge  of  the  sewage.  The  necessary 
result  would  be  that  in  the  hot  and  dry  weather  of  summer  the 
offensive  substances  discharged  from  the  sewer  would  accumulate 
and  remain  at  or  near  the  point  of  discharge,  not  only  defiling 
and  polluting  the  pools  of  water  standing  in  that  poition  of  the 
channel,  but  emitting  noxious  vapors,  corrupting  and  poisoning 
the  atmosphere  in  that  vicinity. 


WHEN    PAROL    LICENSE    IS    REVQCABLE.  509 

The  decree  of  the  circuit  court  dismissing  the  bill  is  sought  to 
he  sustained  on  the  ground  that,  before  the  c()mi)lainant  is  en- 
titled to  an  injunction,  he  must  bring  his  suit  at  law,  and  have 
liis  right  determined  by  a  jury.  While  it  is  a  general  rule,  and 
one  which  was  formerly  enforced  with  very  considerable  strict- 
ness, that,  before  a  court  of  equity  will  interfere  by  injunction 
to  restrain  a  private  nuisance,  the  complainant  must  establish  his 
right  in  a  court  of  law,  that  rule  has  in  modern  times  been  some- 
what relaxed.  In  Oswald  v.  Wolf,  129  111.  200;  21  N.  E.  889, 
in  discussing  this  branch  of  equity  jurisdiction,  we  said  :  "  Even 
this  power  was  formerly  exercised  very  sparingly,  and  only  in 
extreme  cases,  at  least  until  after  the  right  and  question  of 
nuisance  had  been  settled  at  law.  While  in  modern  times  the 
strictness  of  this  rule  has  been  somewhat  relaxed,  there  is  still 
a  substantial  agreement  among  authorities  that,  to  entitle  a 
party  to  equitable  relief  before  resorting  to  a  court  of  law,  his 
case  must  be  cleai",  so  as  to  be  free  from  substantial  doubt  as 
to  his  right  to  relief."  We  are  disposed  to  think  that  the  com- 
plainant's case  is  one,  which,  within  the  rule  as  thus  laid  down, 
entitles  him  to  an  injunction  without  having  first  established 
his  right  at  law.  None  of  the  substantial  facts  upon  which  his 
rights  rested  are  controverted.  His  title  to  and  possession  of 
the  land  across  which  the  creek  in  question  runs,  and  the  inten- 
tion of  the  village  to  construct  its  system  of  sewers  and  dis- 
charge its  sewage  into  the  creek  a  few  rods  above  his  land, 
are  admitted.  It  is  true  some  witnesses  are  produced  who  ex- 
press the  opinion  that  the  proposed  discharge  of  the  sewage  of 
the  village  into  this  stream  will  not  have  the  effect  of  materially 
polluting  the  water  in  the  creek,  but,  in  our  judgment,  little 
weight  is  to  be  given  to  the  testimony  of  witnesses  who  attempt 
to  swear  contrary  to  known  and  established  natural  laws.  That 
the  sewage  of  a  village  of  1,600  inhabitants,  discharged  into  a 
small  stream,  will  materially  pollute  the  water  of  the  stream, 
and  render  it  unfit  for  domestic  use,  for  at  least  a  few  rods  below 
the  point  of  discharge,  is  a  pro[)osition  too  plain  anil  too  thor- 
oughly verified  by  ordinary  experience  and  ol)3ervation  to  admit 
of  reasonable  doubt.  That  such  disposition  by  the  village  of  its 
sewage  will  create  and  constitute  a  nuisance  ^j^r  se  is  a  proposition 
too  plain  for  serious  question.  The  case  of  VVahle  v.  Keinback,  76 
111.  322,  was  a  bill  in  equityforan  injunction  to  restrain  a  threat- 
ened nuisance,  the  nuisance  consisting  of  constructing  a  privy  on 
a  lot  adjoining  that  of  the  complainant,  within  8  feet  of  the  com- 
plainant's dwelling  house  and  cellar,  and  within  20  feet  of  the 
well  from  which  the  complainant  and  his  family  were  supplied 
with  water  for  drinking,  cooking,  and  other  domestic  purposes. 


510  LICENSES. 

It  was  urged  by  the  defendant  tliut,  before  an  injunction  could 
issue  in  a  case  of  that  character,  it  was  necessary  that  it  should 
be  previously  determined  by  a  jury  in  a  trial  at  law  that  a 
nuisance  in  fact  existed.  This  contcniion  was  overruled,  the 
court  citing  in  sui)i)ort  of  its  judgment,  among  various  other 
authorities,  the  following  passage  from  Kerr  on  Injunctions: 
'*  The  court  will  not,  in  general,  interfere  until  an  actual  nui- 
sance has  been  committed  ;  but  it  may,  by  virtue  of  its  jurisdic- 
tion to  restrain  acts  which,  when  com[)leted,  will  result  in  a 
ground  of  action,  inteifere  before  any  actual  nuisance  has  been 
committed,  where  it  is  satisfied  that  the  act  com})lained  of  will 
inevitably  result  in  a  nuisance."  It  was  accordingly  held  that  a 
privy  so  constructed  and  located  as  to  corrupt  the  water  of  a  well 
used  for  domestic  purposes,  or  so  near  the  complainant's  dwell- 
ing house  as  to  annoy  him  in  the  proper  enjoyment  of  his  prop- 
erty, constituted  a  nuisance  ^;a"  se,  and  that  no  preliminary 
declaration  of  that  fact  by  a  jury  was  necessary  to  give  a  court 
of  equity  jurisdiction.  We  are  satisfied  that  the  same  rule  should 
be  ap[)lied  here.  The  discharge  of  the  sewage  of  the  village 
into  the  creek,  thereby  corrupting  the  waters  of  the  stream  as  it 
flows  across  the  complainant's  land,  would  create  a  nuisance  per 
se,  and  the  complainant  was  therefore  clearly  entitled  to  an  in- 
junction restraining  the  creation  of  such  a  threatened  nuisance. 
But  it  is  contended  that  the  complainant  gave  his  consent  to 
the  construction  of  the  proposed  system  of  sewers,  and  to  the 
discharge  of  the  sewage  of  the  village  into  the  creek,  and  that 
he  thereby  estopped  himself  from  any  right  to  the  relief  now 
prayed  for.  The  evidence  shows  that,  when  the  construction  of 
the  proposed  system  of  sewers  was  in  contemplation,  a  public 
meeting  of  the  citizens  of  the  village  of  Dwight  was  called  by 
the  municipal  authorities  to  consider  the  advisability  of  con- 
structing the  proposed  sewers,  and  that  the  complainant  was  one 
of  those  who  attended  the  meeting.  It  also  appears  that  during 
the  meeting  his  views  were  called  for,  and  that  he  thereupon 
made  a  few  remarks,  in  which,  as  is  claimed,  he  exi)ressed  his 
approbation  of  the  enterprise,  and  his  willingness  that  the  sewers 
should  be  so  constructed  as  to  discharge  the  sewage  into  the 
creek.  He  testifies  on  the  other  hand,  that  he  at  the  time  sup- 
posed that  the  sewer  under  consideration  was  merely  a  sewer 
to  convey  off  the  sewage  from  the  buildings  of  the  Keeley 
Institute,  and  not  a  general  system  of  sewers  for  the  entire 
village,  and  that  whatever  he  may  have  said  had  reference 
solely  to  that  one  sewer,  and  that  he  did  not  intend  to  be 
understood  as  consenting  to  a  discharge  into  *he  creek  of  all 
the  sewage  of    the  village,  and  there  are    some  circumstances 


WHEN    PAROL    LICENSE    IS    REVOCABLE.  511 

corroborative  of  the  complainant's  account  of  the  matter.  How 
far,  if  at  all,  the  subsequent  action  of  the  viUage  authorities  was 
taken  in  reliance  upon  what  was  said  l)y  the  complainant  at  this 
meeting  does  not  appear,  hut  the  evidence  shows  that  they  sub- 
sequently caused  plans  and  si)ecifications  of  the  proposed  system 
of  sewers  to  be  prepared  at  considerable  expense,  adopted  the 
necessary  ordinance  providing  for  its  construction,  and  entered 
into  a  contract  with  certain  parties  to  construct  the  sewers  at  a 
sti[)ulMted  price.  It  also  appears  that  the  contractors,  after  the 
execution  of  the  contract,  commenced  its  performance,  by  plac- 
ing on  the  ground  considerable  quantities  of  brick  and  tile  for 
the  sewers.  After  this  was  done,  the  authorities  of  the  village 
a|)p]ied  to  the  complainant  for  a  deed  granting  to  them  the  right 
to  discharge  the  sewage  into  the  creek,  but  that  the  complainant 
refused  to  give,  and  it  is  conceded  that  he  then  or  thereafter 
revoked  any  oral  license  which  he  may  have  given  to  the  village 
to  discharore  its  sewage  in  that  manner.  The  most  that  can  be 
said  of  the  complainant's  consent  to  the  proposed  system  of 
sewers,  if  he  in  fact  gave  such  consent,  is  that  it  was  a  mere 
oral  license,  which  was  revocable  at  any  time  by  the 
licensor.  The  right  to  pollute  the  waters  of  the  creek  by 
(lischarginof  the  sewage  into  it  was  in  the  nature  of  an  easement, 
which  could  be  created  only  by  grant  or  prescription,  and  a 
mere  oral  consent  to  such  pollution  of  the  stream  vested  in  the 
village  no  right  which  it  was  not  in  the  power  of  the  complain- 
ant at  any  time  to  recall.  Nor  did  the  fact  that  the  village  had 
expended  money  or  incurred  liabilities  in  the  matter  of  con- 
structing the  sewers  present  any  obstacle  to  such  revocation. 
St.  Louis  Nat.  Stock  Yards  v.  Wiggins  Ferry  Co.,  112  111.  384; 
Woodward  v.  Seely,  11  111.  157;^  Tied.  Real  Prop.,  §  65,  and 
cases  cited  in  note.  So  far  as  the  village  expended  money  or 
incurred  liabilities  in  the  matter  of  constructing  the  proposed 
sewers,  it  must  be  held  to  have  done  so  with  full  knowledge  of 
the  fact  that  the  complainant  had  in  no  way  obligated  himself  to 
allow  the  sewage  to  be  discharged  into  the  creek  by  any  binding 
act  or  instrument,  and  that  he  was  at  liberty  at  any  time  to  re- 
call the  consent  which  he  had  orally  given.  And  if  under  these 
circumstances,  and  without  seeking  to  obtain  from  him  any  grant 
of  the  right  of  way  over  his  land,  or  the  execution  by  him  of 
any  other  binding  obligations  in  the  premises,  the  village 
authorities  saw  fit  to  take  steps  towards  the  construction  of  the 
sewers,  they  are  hardly  in  a  position  to  invoke  the  doctrine  of 
estoppel  for  the  purpose  of  precluding  the  complainant  from  the- 
assertion  of  his  legal  or  equitable  lights  in  the  premises. 

It  is  finally  insisted  that  the  complainant  has  a  complete  and 


512  LICENSES. 

adequate  remedy  at  law,  and  that  loliof  in  equity  should  be 
donic'd  for  that  reatJoii.  We  do  not  uiiderfttand  counsel  as  deny- 
ing that  ordinarily,  in  cases  of  })iivate  nuisances  of  this  char- 
acter, the  threatened  damage  is,  in  a  legal  sense,  irreparable,  so 
as  to  call  for  the  interposition  of  equity,  but  it  is  claimed  that 
because  the  claimant,  at  the  request  of  the  village  authorities, 
submitted  a  proposition  or  offer  to  permit  the  discharge  of  sew- 
age into  the  creek  upon  certain  specified  terms,  he  thereby  con- 
clusively admitted  that  his  damages  were  capal)le  of  admeasure- 
ment in  money,  and  therefore  capable  of  being  completely  com- 
pensated at  law.  The  proposition  submitted  was  as  follows: 
"Dvvight,  111.,  7-28,  1892.  K.  A.  Buck— Dear  Sir:  About 
the  sewer,  will  say  that  I  will  require  the  creek  made  straight  by 
the  Gresh  house,  and  cleaned  up  through  the  willows  below  the 
same,  and  the  creek  fenced  on  both  sides,  —  three-board  and 
two-wire  fence  ;  two  bridges  made  across  the  creek;  said  fence 
and  bridges  to  be  kept  in  repair  by  the  city  without  expense  to 
me,  and  for  being  deprived  of  the  use  of  said  creek  for  stock 
watering,  ice  cutting,  etc.,  consideration  will  be  five  thousand 
dollars  ($5,000).  This  leaves  the  stench  question  open.  J.  A. 
Hayes."  This,  on  being  submitted  to  the  village  board,  was 
promptly  rejected.  We  are  unable  to  see  that  any  such  force 
or  effect  can  be  given  to  this  proposition  as  is  contended  for. 
A  party  whose  personal  property  rights  are  threatened  with 
irreparable  injury  may,  if  he  sees  fit,  offer  to  accept  a  specified 
sum  of  money  as  a  full  conii)eiisation  for  the  threatened  injury, 
but  such  offer,  when  submitted  and  rejected,  can  have  no  tend- 
ency, as  against  the  party  making  it,  to  show  the  amount 
or  nature  of  his  damages.  In  cases  of  this  character,  as  in 
others,  the  law  favors  offers  of  settlement,  and  will  not  permit 
them  afterwards  to  be  used  to  the  prejudice  of  the  parties  who 
make  them.  So  here,  the  offer  of  settlement  cannot  be  re- 
sorted to  for  the  purpose  of  showing  that  the  damages  to  the 
plaintiff  and  his  property  which  would  result  from  discharging 
the  sewage  of  the  village  into  the  creek  might  be  adequately 
remedied  by  a  judgment  at  law.  We  concur  with  the  appellate 
court  in  its  conclusions,  and  its  judgment  will  be  affirmed. 
Judgment  affirmed. 

When  Parol  License  is  Irrevocable. 

Lawrence  v.  Springer,  49  N.  J.  Eq.  289;  24  A,  933. 

Appeal  from  court  of  chancery. 

Bill  by  Charles  L.  Springer  and  William  H.  Springer  against 


WHEN   PAROL    LICENSE    IS    IRREVOCABLE.  513 

Ann  Lawrence.     From  a  decree    for  complainants,   defendant 
appeals.     Reversed. 

Beasley,  C.  J.  The  facts  necessary  to  the  intelligibility  of 
the  views  to  be  expressed  can  be  stated  in  a  few  words.  There 
are  three  several  tracts  of  land  in  the  county  of  Gloucester  lyini^ 
along  the  Delaware  river.  A  part  of  each  of  these  consists  of 
meadows  that  were  injuriously  affected  by  the  flow  of  the  tides, 
so  that  in  the  year  18,51  commissioners  were  appointed  under 
the  act  (Revision  642)  to  enable  the  owners  of  meadows  to 
improve  the  same.  By  force  of  that  proceeding  certain  em- 
bankments, drains,  and  sluices  were  estal)lished,  and  an  appor- 
tionment of  the  expense  of  constructing  and  maintaining  them 
was  duly  made.  That  this  course  of  law  was  and  is  legal  no 
one  disputes.  Of  the  three  tracts  thus  improved,  the  respond- 
ents, who  were  complainants  in  the  court  below,  are  at  present 
the  owners  of  the  central  one,  and  which  is  drained  on  one  side, 
through  the  property  of  the  ap|)ellant,  and  on  the  other  through 
that  belonging  to  one  Beckett,  who  is  not  a  party  to  this  suit. 
This  being  admittedly  the  legal  situation,  some  years  ago  the 
respondents,  being  minded  to  reclaim  other  parts  of  their  low 
lands,  removed  the  bank  on  their  property  erected  by  the  com- 
missioners nearer  to  the  river,  so  as  to  take  in  about  25  acres 
of  additional  meadow,  and  thereby  at  least  doubled  the  acreage 
of  their  farm  to  be  drained.  By  means  of  subsidiary  drains  laid 
in  the  superadded  land  thus  reclaimed,  they  carried  the  water 
from  it  into  the  drains  laid  by  the  commissioners,  so  that  thereby 
part  of  such  water  is  carried  and  discharired  through  the  prop- 
erty of  the  appellant,  and  the  residue  through  that  of  Mr. 
Beckett,  above  named.  The  question,  therefore,  from  this  atti- 
tude of  affairs,  necessarily  arose,  by  what  right  did  the  respond- 
ents burden  the  land  of  the  appellant  with  the  passage  and 
discharge  of  this  superadded  water?  It  was  undeniable,  and 
was  therefore  admitted,  that  it  was  not,  in  any  degree,  by  force 
of  the  action  of  the  statutory  commission,  for  it  was  the  con- 
sequence of  a  radical  alteration  of  that  i?lan  and  adjustment. 
What  the  respondents  claimed  was  and  is  an  easement;  that  is, 
the  right,  in  favor  of  their  own  lands,  to  discharge  this  water 
onto  and  through  the  lands  of  the  appellant.  There  was  no  con- 
tention that  they  possessed  a  deed  or  writing  granting  to  them 
such  right,  but  their  cootention  was  that  the  appellant  had 
orally  consented  to  the  imposition  of  this  burden  on  her  land, 
and  that,  in  reliance  on  such  assent,  they  had  incurred  certain 
expenses  in  erecting  their  bank  and  drains,  and  that,  as  a  con- 
sequence, she  would  not  in  equity  be  permitted  to  recall  her 
license.     This  view  was  sustained  in  chajcery,  and  the  appellant 

33 


514  LICENSES. 

was  enjoined  from  stopping  the  flow  of  this  water  over  her  land, 
as  she  threatened  to  do. 

It  will  bo  ol)served  that  the  injury  thus  supervening  involves 
the  difiicult  and  troublesome  problem  as  to  what  extent  and 
under  what  circumstances  will  a  court  of  equity  disregard  the 
well-established  rules  of  the  common  law,  as  well  as  the  j)Iain 
provision  of  the  statute  of  frauds,  in  the  establishment  of  a 
servitude  of  this  kind.  In  the  present  instance  the  proposition 
upon  which  this  decree  has  been  founded  is  this ;  that  a  parol 
license,  without  any  consideration  mone}'  to  the  licensor,  0|)er- 
ating  as  a  grant  of  an  easement,  is  irrevocable  in  equity,  when 
the  licensee  has  gone  to  expenditures  in  the  erection  of  structures 
on  his  own  land  in  pursuance  of  such  authority.  In  the  sequel 
it  will  become  requisite  to  consider  how  far  this  formula,  even 
in  its  extremest  latitude,  will  support  the  decree  before  us  in  its 
application  to  the  facts  of  the  case  ;  but  before  approaching  that 
inquiry  it  seems  necessary,  in  order  to  avoid  misconception  on 
the  subject,  to  consider  whether  the  equitable  principle  thus 
propounded  has  any  place,  and,  if  so,  to  what  extent,  in  the 
legal  system  of  this  State. 

It  has  not  been,  and  it  cannot  be,  claimed  that  such  a  grant  as 
the  one  in  question  cannot  be  enforced  in  a  court  of  law.  Such 
easements  being  incorporeal,  lie  in  part,  and  their  creation  re- 
quires an  instrument  under  seal.  Nor  is  it  questioned,  nor  ques- 
tionable, that  a  parol  imposition  of  a  servitude  of  this  kind  upon 
land  is  in  flat  contradiction  of  the  statute  of  frauds.  It  is 
true,  indeed,  that  in  one  class  of  cases,  as  is  well  known,  courts 
of  conscience  have  felt  dispensed  from  putting  in  force  the 
provisions  of  that  act.  This  has  been  the  course  pursued  where 
a  parol  agreement  for  the  purchase  of  lands,  or  of  some  inter- 
est in  them,  has  been  performed  to  the  extent  of  possession 
having  been  taken  in  part  execution  of  such  contract.  But, 
while  this  is  the  undeniable  rule  in  equity,  it  should  be  ever 
borne  in  mind  that  its  introduction  has  been  regretted  by  the 
wisest  judges.  '*  The  statute,"  says  Lord  Redesdale,  "  was 
made  for  the  purpose  of  preventiug  perjuries  and  frauds,  and 
nothing  can  be  more  manifest,  to  any  person  who  has  been  in 
the  habit  of  practicing  in  courts  of  equity,  than  that  the  relax- 
ation of  that  statute  has  been  a  ground  of  much  perjury  and 
much  fraud.  If  the  statute  had  been  rigorously  observed,  the 
result  would  probably  have  been  that  few  instances  of  parol 
agreements  would  have  occurred.  Agreements,  from  the  neces- 
sity of  the  case,  would  have  been  reduced  to  writing;  whereas 
it  is  manifest  that  the  decisions  on  the  subject  have  opened  a 
new  door  to  fraud."     And  these  strictures  are  pointed  with  the 


WHEN    PAROL    LICKNSK    IS    IRREVOCABLE.  515 

('iiii»li;itic  declaration  that  "  it  is,  thcrefovc,  absolutely  necessary 
for  courts  of  ecjuity  to  make  a  stand,  and  not  carry  the  decisions 
further."  Lindsay  v.  Lynch,  2  Schoalcs  &  L.  4.  And  in  the 
same  vein,  Judge  Story  (2  Eq.  Jur.,  §  7()())  says  that  "  consid- 
erations of  this  sort  have  led  eminent  judges  to  declare  that 
they  would  not  carry  the  exceptions  of  cases  from  the  statute  of 
frauds  further  than  they  were  compelled  to  do  by  former  decis- 
ions." To  the  same  pur|)()8e  are  the  criticisms  of  Chancellor 
Kent  in  Phillips  v.  Thompson,  1  Johns.  Ch.  149,  and  of  Chan- 
cellor Zabriskie  in  Cooper  v.  Carlisle,  17  N.  J.  Eq.  529. 

That  the  excei)tion  to  the  statute  must  be  greatly  amplified, 
if  it  is  to  embrace  and  validate  the  parol  contract  in  the  present 
instance,  is  entirely  manifest.  Indeed,  it  may  be  said  that, 
after  such  an  extension,  it  would  scarcely  be  susceptible  of 
further  enlargement.  When  A.  permits  B.  to  build  a  house 
upon  his  land,  the  situation  almost  necessarily  implies  the  exist- 
ence of  some  contract  which  is  thus  partly  performed  between 
them.  To  some  extent,  therefore,  such  a  matter  does  not  rest 
absolutely  in  j)arol,  and  the  area  of  possible  fraud  or  perjury  is 
therefore  thus  circumscribed  and  hindered.  But  when  B.,  from 
his  own  land,  turns  his  water  into  the  drains  on  the  land  of  A., 
the  situation  does  not  im})ly  a  contract.  On  the  contrary,  the 
situation  denotes  simply  a  trespass.  Consequently  the  exi>tence 
and  characler  of  the  contract,  if  one  exists,  is  the  pure  creation 
of  parol  testimony.  So  wide  would  be  tlie  principle  of  such  an 
impairment  of  the  statute  that  it  is  diflScult  to  see  how  it  could 
be  circumscribed.  It  would  seem  to  be  applicable  to  the  crea- 
tion of  eveiy  species  of  easement;  for  mavbe  all  rights  of  way, 
all  rights  to  light  and  air,  the  right  to  discharge  impure  water  or 
smoke  and  noisome  v^mells,  and  other  incorpc^real  rights  of  the 
same  kin<l,  cr)uld,  in  most  cases,  be  established  by  the  unassisted 
force  of  parol  evidence.  Plainly,  the  principle  is  of  great  con- 
sequence, and  the  question  is  whether  it  prevails  in  this  State. 

In  responding  to  this  question  in  the  affirmative  the  experienced 
and  able  vice-chancellor  who  decided  this  case(  21  All .  RL'p.41 )  re- 
lied u})on  two  recent  opinions  in  the  court  of  chancery  as  contain- 
ing the  equitable  rule  now  applicable,  and  which  has  been  already 
expressed  (  Summer  v.  Seaton,  19  All.  Rep.  884;  Brewing  Co.  v. 
Morton,  20  All.  Ile[).  28H);  and  in  addition  to  these  was  cited 
the  case  of  Water  Pt)werC().  v.  Veghte,  21  N.  J.  Eq.  4tJ3.  This 
last  case  was  decided  in  this  couit,  and  rests  upon  satisfactory 
grounds,  but  its  applicability  in  the  present  instance  is  not  per- 
ceived. Then  this  ctmrt  was  called  upon  to  test  the  equitable 
efficacy  of  a  written  license  under  cei  tain  conditions;  now  it  is  to 
pass  upon  an  oral  license  under  very  different  conditions.     The 


51G  LICKNSE8. 

hinguiiire  of  the  oi)inion  niust  be  constriicd  with  relation  to  the 
facts  then  under  consideration.  In  the  leported  case  the  statute 
of  frauds  was  not  a  factor  influencing  the  determination,  while 
on  the  present  occasion  it  is  one  of  prime  importance.  The  two 
cases  do  not  stand  upon  the  same  common  hasis. 

The  two  English  cases  cited  appear  to  be  equally  alien  from 
our  present  subject.  One  of  these  is  that  of  Duke  of  Devonshire 
V.  Eglin,  14  Beav.  530,  and  it  is  entirely  phiin  that  the  circum- 
stances called  for  the  api)lication  of  a  rule  altogether  unlike  the 
one  now  in  question.  In  his  opinion  in  the  present  case,  the 
vice-chancellor  describes  this  as  an  instance  "of  a  parol  license 
to  maintain  a  water  conduit  across  the  licensor's  land  to  supply 
a  village  with  water;  "  but  the  fact  that  the  equitable  effect  of 
such  an  unwritten  authority,  intrinsically  considered,  was  not 
in  any  degree  passed  upon,  appears  to  have  e.scai)ed  observa- 
tion. In  the  reported  case  the  answer  admitted  the  agree- 
ment, and  it  was  so  found,  the  chancellor  saying:  "I  am  of 
the  opinion  that  the  passages  read  from  the  answer  show  that 
there  was  a  parol  agreement  to  allow  the  water-course  to  be 
made  through  the  defendant's  land  in  consideration  of  payment 
of  a  reasonable  sum,"  and,  consequently,  works  that  had  been 
built  in  reliance  on  such  an  admitted  contract  were  not  permitted 
to  be  disturbed.  It  is  obvious  tliat  the  point  under  consideration 
was  not  in  any  wise  decided.  The  other  English  authority  relied 
on  is  that  of  Mold  v.  Wheatcroft,  27  Beav.  510,  but  the  briefest 
statement  of  the  facts  of  that  case  will  serve  to  show  that  the 
rule  controlling  them  cannot  be  of  any  concern  in  our  present 
inquiry.  It  is  true,  as  the  vice-chancellor  says,  that  this  "  was 
a  case  of  a  right  of  way  ;  "  but  such  a  description  is  not  com- 
plete, for  it  was  a  right  to  a  railway  thut  was  in  question.  The 
defendant,  being  invested  by  act  of  parliament  with  the  power 
to  lay  a  railway  over  the  complainant's  land,  paying  a  reasonable 
compensation  for  such  privilege,  had  entered  upon  such  prop- 
erty with  the  assent  of  its  owner,  and  made  the  construction  in 
dispute.  It  was  therefore  a  case  plainly  within  the  equitable 
rule,  already  stated,  of  a  parol  agreement  for  the  purchase  of 
an  interest  in  land,  and  an  entry  and  possession  by  force  of  such 
an  agjeement,  and  there  was  also  parliamentary  authority  to  do 
the  act  consented  to.  In  short,  the  case  is  identical  in  all  its 
esssenlial  features  with  that  of  Water  Power  Co.  v.  Chambers,  9 
N.  J.  Eq.  471.  It  certainly  cannot  be  necessary  to  pause  for  an 
instant  to  point  out  the  dissimilarity  between  such  a  conjuncture 
and  the  one  now  being  considered. 

The  result  seems  to  be  that  neither  of  the  cases  cited 
in     the     opinion     of     the    vice-chancellor    from   the    opinions 


WHEN    PAROL    LICENSE    IS    IRREVOCABLE.  517 

of  the  English  chancellors  supports  in  any  noteworthy  degree 
the  rule  embodied  in  the  decree  now  before  this  court. 
Nor  has  it  appeared  from  my  own  researches  in  that  field 
that  there  is  to  be  found  any  authority  directly  upon  this 
question;  but  in  making  this  remark  it  should  be  said  no  stress 
is  laid  on  the  two  cases  which  are  to  be  found  in  2  Eq.  Cas.  Abr. 
522,  although  in  the  Slate  of  Pennsylvania  they  appear  to  have 
had  a  decided  effect  in  leading  to  the  promulgation  by  the  courts 
of  the  doctrine  now  under  criticism.  The  book  referred  to  is  of 
slight  repute,  and  it  alludes  to,  rather  than  reports,  these  two 
judicial  resolutions.  The  tirst  of  them  is  contained  in  six  lines, 
stating  that  A  diverted  a  water-course,  which  put  B  to  great 
expense  in  laying  of,  etc.;  and,  the  diversion  being  a  nuisance 
to  B,  he  brought  this  action,  but  an  injunction  was  decreed  upon 
a  bill  exhibited  for  that  purpose,  —  it  being  proved  that  B  did 
see  the  work  when  it  was  carrying  on,  and  connived  at  it,  with- 
out showing  the  least  disagreement,  but  rather  the  contrary. 
Short  V.  Taylor,  in  Lord  Somers'  time,  was  cited  which  was 
thus:  "Short  built  a  fine  house.  Taylor  began  to  build 
another,  but  laid  part  of  his  foundation  on  Short's  land.  Short, 
seeing  this,  did  not  forbid  him,  but  on  the  contrary  very  much 
encouraged  it;  and,  when  the  house  was  built,  he  brought  his 
action,  and  Lord  Somers  granted  an  injunction."  It  will  be 
observed  that  this  case  of  Short  v.  Taylor  was  correctly  disposed 
of,  for  the  facts  do  not  seem  susceptible  of  other  than  one  of 
two  interpretations,  viz. :  That  Taylor  was  in  possession  of  the 
land  in  question,  with  the  assent  of  Short,  in  which  event  it  was 
a  license  executed  by  possession,  which  would  be  enforceable  in 
equity  according  to  the  established  rule ;  while  the  other  issue, 
from  the  insufficiency  of  its  disclosures,  is  unintelligible  in  any 
reasonable  sense,  as  it  is  not  shown  that  the  licensee  had  incurred 
any  expense,  or  would  sustain  any  damage,  in  consequence  of 
the  revocation  of  the  authority  to  divert  the  water. 

With  respect  to  the  state  of  the  law  in  this  country  on  this 
subject,  it  is  sufficient  to  say  that  it  exhibits  much  contrariety  of 
judicial  opinion.  A  copious  collection  of  such  authority  will  be 
found  in  13  Amer.  &  Eng.  Enc.  Law.  tit.  "License,"  p.  550, 
and  in  the  text  of  that  work  it  is  declared  that  "  in  most  of  the 
States  it  has  been  held  that,  even  where  money  has  been  ex- 
pended by  the  licensee  on  the  faith  of  the  license,  the  licensor 
may  exercise  his  power  of  revocation."  And,  indeed.  Prof. 
Pomeroy  himself,  although  his  work  on  Specific  Performance  is 
cited  by  the  vice-chancellor  in  the  support  of  the  doctrine  of  the 
irrevocability  of  parol  license  of  this  kind,  after  referring 
to    such    principle    as   prevailing    in    certain    jurisdictions    in 


518  LICENSES. 

this  country  concludes  with  the  decided  declaration  that  "  I  his 
I'ule  is  uiuloul)te(]ly  op[)osed  to  the  cominon-hiw  doctritie  con- 
cerning licenses,  as  it  prevails  in  Enghmd  and  in  most  of  the 
American  Stales."  In  this  view  I  concur,  and  shall  conclude 
this  succinct  examination  of  the  subject  wilh  the  remark  that,  if 
the  j)rincii)lc  that  licenses  of  this  character  are  to  be,  under  the 
conditions  in  question,  treated  as  irrevocable,  the  same  princi- 
ple, if  logical  reasoning  is  to  be  maintained,  would,  of  necessity, 
have  to  be  extended  so  as  to  control  most  of  the  regulations  of 
the  statute  of  frauds,  etc.  If  a  parol  license,  incthcacions  by 
force  of  the  act,  should  be  rendered  efficacious  by  reason  of  a 
losing  part  performance  on  the  side  of  the  licensee,  it  would  be 
difficult  to  refuse  on  a  like  ground  to  apply  a  similar  qualitj' 
to  a  sale  of  goods  equally  within  the  statutory  condemnation. 
Suppose  A,  a  merchant,  should  by  parol  purchase  a  cargo  of 
merchandise  of  B,  to  be  delivered  at  a  certain  day,  and  trust- 
ing in  such  agreement  of  sale  should,  to  the  knowledge  of  B, 
proceed  at  great  expense  to  procure  a  vessel  and  prepare  it  for 
the  voyage,  would  such  sale  be  enforceable  either  at  law  or 
in  equity?  In  such  case  it  would  not  be  pretended  that  by 
reason  of  part  performance  and  great  loss,  a  practical  equity 
would  arise  ;  and  yet  how,  in  point  of  principle,  is  such  sup- 
posed case  distinguishable  from  that  of  one  of  these  licenses 
after  part  performance  by  the  licensee?  The  fact  is  that  a 
statute  that  renders  legal  the  revocation  of  certain  classes  of 
contracts  is  founded  on  the  theory  that,  while  by  its  force 
great  losses  will  many  times  fall  upon  promisees,  nevertheless 
such  losses  must  be  endured  by  such  sufferers  in  order  that 
the  mass  of  the  community  shall  be  protected  against  worse 
disaster.  When  the  legislature  has  declared  that  in  general, 
with  respect  to  certain  subjects,  there  is  great  danger  of  fraud 
and  perjury,  if  parol  evidence  be  received,  how  is  it  competent 
for  a  court  to  declare  there  is  no  such  danger  in  particular  in- 
stances of  such  subjects?  What  reason  can  be  assigned  why  in 
the  {)resent  case  this  appellant  should  not  be  protected  against 
the  danger  of  fraud  or  perjury,  which  the  statute  assumes  is 
imminent  in  such  cases? 

My  general  conclusion  is  that  servitudes  cannot  be  imposed 
upon  land  by  parol  transaction,  except  to  the  extent  above  indi- 
cated, as  evidenced  by  the  ancient  decisions  in  the  Enirlish  chan- 
cery, and  that  our  own  courts  should  not  extend  that  limit.  But, 
whatever  views  may  be  entertained  by  others  on  this  subject,  it 
is  still,  as  it  seems,  demonstrably  clear  that  the  decree  before  this 
court  cannot  be  sustained.  Whether  the  broad  rule  adopted  in 
the  court  below,  or  the  narrow  one  just  indicated,  be  applied  for 


WHEN    PAROL    LICENSE    IS    IHKKVOCABLE.  519 

present  purposes,  the  result  must  be  the  same,  for  the  proofs  do 
not  make  either  rule  effective  in  fiivor  of  the  respondents. 
Nothing  is  cleiirer  or  more  settled  thiin  that,  in  all  cases  in  vvliieh 
any  court  has  validated  an  incumbrance  imposed  upon  land  by 
force  of  a  parol  contract,  such  contract  has  been  required  to  be 
proved  to  the  point  of  demonstration,  and  that  the  repudiation 
of  it  would  work  irreparable  injury.  Both  these  essentials  are 
wanting  to  the  affair  before  the  court. 

In  the  first  place,  there  was  no  such  proof  as  that  just  indi- 
cated, as  to  the  existence  of  the  alleged  license.  Snch  fact  was 
attempted  to  be  proved  in  two  ways:  Firsts  by  showing  an  ex- 
press consent  to  the  easement  by  the  agent  of  the  appellant ;  and, 
second,  by  the  circumstance  that  the  appellant  saw  the  structures 
building  on  the  respondents'  land  and  remained  silent.  On  the 
first  head  it  is  insisted  that  the  son  of  the  appellant,  being  her 
agent,  gave  the  license  in  question.  But  the  testimony  in  this 
particular  is  conflicting,  and  leaves  the  matter  in  much  doubt. 
The  son  of  the  appellant  explicitly  denies  that  he  consented  to 
the  use  of  the  appellant's  land  as  claimed.  This  denial  is  con- 
troverted by  one  of  the  respondents,  who  is  supported  in  some 
degree  by  the  other.  The  preponderance  of  proof,  if  it  exist, 
is  but  slight,  and  indubitably  falls  far  short  of  that  measure  of 
evidence  which  in  these  cases  has  always  been  deemed  requisite. 
According  to  Prof.  Pomeroy,  on  such  occasions  as  this  the  most 
"certain  and  unmistakable  evidence"  is  inexorably  demanded, 
and  it  is  manifest  that  this  requirement  is  not  fulfilled  by  the 
above  stated  evidential  contradictions  that  are  nearly  in  equi- 
poise. Also,  on  the  assumption  that  the  agent  of  the  appellant 
granted  the  license  in  question,  still  the  case  of  the  respondents 
is  fatally  defective,  because  it  clearly  appears  that  their  expendi- 
tures were  not  made  in  reliance  upon  such  license.  In  the 
entire  line  of  cases  on  this  subject  it  is  believed  that  in  no 
instance  has  relief  ever  been  extended  to  a  licensee  who  has 
failed  to  show  that  he  has  incurred  large  expenses  in  the  confi- 
dence that  his  license  would  not  be  revoked.  In  the  instance  in 
hand  the  license  that  is  set  up  was  given  when  the  entire  work 
on  the  respondent's  land  was,  in  the  language  of  the  vice- 
chancellor,  "  nearly  finished,"  so  that  the  expenses  afterwards 
incurred  were  plainly  trivial.  Under  such  circumstances,  it  h;is 
never  been  claimed,  nor  can  it  be  reasonably  claimed,  that  there 
is  even  a  colorable  basis  for  the  respondents'  bill;  for,  if  they 
did  not  in;iko  their  outlays  because  of  the  assurances  or  promises 
of  the  appelhuit,  how  is  it  that  the  latter  is  to  be  estopped  (rom 
asserting  her  legal  rights? 

But,  further,  even  if  the  foregoing  considerations  should  be 


520  LICENSES. 

waived,  the  respondents'  c:ise  is,  iis  it  is  deemed,  wholly  dcfect- 
ivo;  for,  if  wo  assume  that  the  sou  of  the  ai)pelhiiil  gave  the 
license  in  question,  it  is  [)lain  that  such  grant  was  nugatory,  for 
in  that  respect  the  son  was  not  the  agent  of  his  mother.  Noth- 
ing can  be  clearer  than  this  latter  proposition,  for  the  entire 
proof  of  agency  consisted  in  a  statement  made  by  the  son  in  an 
ailidavit  annexed  to  the  answer  of  his  motlier  in  this  case,  "  that 
he  liad  been  her  agent  for  more  than  20  years  in  the  conduct  of 
the  business  relating  to  her  meadow  lauds,"  and,  in  his  ansvver 
to  a  question  when  examined  as  a  witness,  that  he  had  "had 
the  oversight  of  the  farm."  This  is  the  entire  evidence  with  re- 
gard to  this  agency  and  its  scope,  and  it  is  therefore  confidently 
believed  that  no  one  versed  in  the  law  will  assent,  when  the 
situation  is  pointed  out,  that  such  an  authorization  enat)Ied  the 
son  to  impose  on  his  mother's  land  a  permanent  servitude  for 
the  benefit  of  her  neighbor.  This  fatal  imperfection  in  the  case 
of  the  respondents  appears  to  have  engaged  attention  in  the 
court  below  ;  but,  as  the  defect  does  not  reside  in  mere  technical 
considerations,  but  in  the  fundamental  equities  of  the  case,  it 
cannot  now  be  overlooked.  The  respondents  are  clearly  disen- 
titled to  the  riiJiht  which  they  assert,  unless  such  right  was  con- 
ferred upon  them  by  the  ai)i)ellant.  It  is  not  pretended  that 
they  had  any  personal  comu)unication  with  the  appelhmt  herself. 
Their  entire  claim  is  that  her  son,  in  express  terms,  conferred 
upon  them  the  right  in  question,  and,  as  is  now  shown,  it  is 
made  to  appear  that  the  son  was  destitute  of  all  legal  power  to 
do  such  act.  No  force  whatever  is  left  in  their  case,  either  in 
law  or  in  equity.  The  subject  seems  too  plain  for  discussion. 
It  is  quite  common  to  commit  farm  lands  to  the  management  of 
superintendents,  and  to  judicially  declare  that  such  general 
authorizations  confer  upon  such  agents  the  power  to  create  ease- 
ments in  the  lands  so  put  in  their  charge  would  introduce  a  doc- 
trine that  would  be  in  the  highest  degree  both  impolitic  and 
novel.  In  our  opinion,  according  to  the  proofs  before  us,  this 
son  of  the  appellant  had  no  more  right  to  impose  this  servitude 
on  his  mother's  land  than  he  would  have  had  to  mortgage  it  for 
the  convenience  of  one  of  her  neighbors. 

As  to  the  suggestion  that  the  appellant  saw  this  work  pro- 
gressing and  encouraged,  by  her  silence,  such  expenditures,  and 
is  therefore  equitably  estopped  from  making  her  present  contest, 
the  answer  is  that,  assuming  that  the  result  thus  asserted  would 
ensue  from  such  conduct,  we  think  it  clear  that  the  proofs  before 
us  do  not  lay  any  foundation  for  the  contention.  There  is  not 
a  particle  of  direct  evidence  to  evince  that  the  appellant  knew 
that  this  work  was  being  done,  and  the  only  indirect  evidence  to 


WHEN    PAROL   LICENSE   IS    IRREVOCABLE.  521 

that  effect  is  that  the  house  in  which  she  lived  was  within  about 
half  11  mile  off,  so  that  if  she  had  looked  she  would  have  seen 
what  was  going  on.  At  the  time  of  the  trial  it  appeared  that 
the  appellant  was  over  80  years  of  age,  and  was  infirm  in  body. 
It  is  not  pretended  that  her  attention  was  called  to  the  subject, 
so  that  it  is  only  by  way  of  a  conjectural  inference  that  she  can 
be  charged  with  a  knowledge  that  the  embankments  in  qnestion 
were  erecting  ;  and,  to  impute  such  knowledge  to  her,  what  does 
it  signify?  If  we  say  she  saw  her  neighbor  putting  up  ceitain 
banks  on  his  own  property,  how  did  that  act  intimate  to  her  that 
it  was  his  purpose,  as  a  necessary  incident  to  the  work  in  pro- 
gress, to  invade  her  own  property?  From  the  evidence  it 
appears  that  it  was  at  least  practicable  to  drain  this  newly  re- 
claimed land  directly  into  the  river,  without  bringing  any  part 
of  its  water  onto  the  property  of  the  appellant.  Can  it  be  said, 
therefore,  that  it  is  reasonable  to  infer  that,  looking  at  these 
improvements  at  the  distance  of  half  a  mile,  she  must  have 
known  what  was  in  the  mind  of  the  respondents  with  respect 
to  a  system  of  drainage?  But,  further  than  this,  even  if  she 
had  at  the  time  been  informed  that  it  was  in  contemplation  to 
subject  her  property  to  the  servitude  of  being  used  as  a  drain 
for  these  reclaimed  meadows,  nevertheless  she  plainly  would  not 
have  been  chargeable  with  a  knowledge  that  it  was  their  purpose 
to  accomplish  such  end  without  her  consent  and  without  legal 
procedure.  We  shall  presently  see  that  the  respondents  had  the 
option  of  establishing  a  drain  over  the  land  of  the  appellant  in  a 
mode  entirely  legal,  or,  as  they  have  done,  in  a  mode  entirely 
tortious.  Consequently  it  would  be  most  unreasonable  to  say 
that  the  appellant  must  have  been  prescient  that  they  would 
adopt,  not  the  lawful,  but  the  tortious,  method,  and  that  thereby, 
impliedly,  she  sanctioned  such  trespass.  We  think  it  incontest- 
able that  the  appellant  did  not,  reading  the  case  in  the  evidence 
before  us,  give  the  license  in  dispute,  nor  was  her  conduct  such 
that  the  respondents  had  the  right  to  infer  that  she  had  done  so. 
As  a  last  consideration,  it  is  proper  to  say  that,  if  we  were  to 
adopt  the  doctrine  prevailing  in  those  jurisdictions  already 
alluded  to,  that  these  parol  licenses  are  legal  and  irrevocable, 
and  were  to  postulate  that  the  license  in  this  instance  was  given 
by  the  appellant,  and  that  the  respondents  have,  in  good  faith, 
expended  their  moneys  in  reliance  upon  it,  nevertheless  it  would 
not  seem  to  us  that  the  respondents  would  have  even  the  semblance 
of  a  stable  footing  in  this  case.  The  reason  of  this  conclusion 
is  this:  that  the  principle  that  has  been  supposed  to  justify  the 
interference  of  equity  in  this  class  of  cases  is  that  without  such 
aid    the    licensee  would   sustain  irreparable  loss.     This   is  the 


522  TITLE    BY    OlilGINAL    ACQUISITION. 

fundamental  consideration  infusing  with  a  supposed  equity  every 
decision  of  this  cUiss.  It  is  not  ol)st'rved  lliat  any  court  has 
ever  interfcrcMl  in  any  instance,  unless  upon  the  ground  to  ])ro- 
tect  the  licensee  from  considerable  an»l  inevitable  (hunage.  This 
essential  feature  is  wanting  in  the  instance  now  in  iiantJ.  The 
revocation  of  this  assumed  license  couhl  not  opeiate  disastrously 
to  the  interests  of  the  rcs[)ondents.  The  remedy  was  in  their 
hands.  All  they  had  to  do  was  to  apply  under  the  meadow  act, 
and  they  would  have  obtained  in  substance,  all  the  relief  that 
has  been  offered  them  by  the  force  (»f  the  present  decree. 
There  was,  on  their  own  showing,  no  necessity  to  call  a  court  of 
equity  to  their  aid.  Their  remedy  at  law  was  complete.  It  has 
never  heretofore  been  claimed  that  a  parol  license  of  this  nature 
can  be  sustained  and  enforced  in  a  case  in  which  its  revocation 
will  work  no  essential  damage  to  its  possessor.  The  decree 
should  be  reversed,  with  costs  to  the  appellant  in  both  courts. 


CHAPTER     XX. 

TITLE  BY  ORIGINAL  ACQUISITION  INCLUDING  ACCRETION,  ADVERSE 
POSSESSION,  STATUTE  OF  LIMITATIONS,  ESTOPPEL,  ABANDON- 
MENT. 

Nebraska  v.  Iowa,  143  U.  S.  359. 

Goodard  v.  Winchell,  86  Iowa,  71 ;  52  N.  W.  1124. 

Pharis  v.  Jones,  122  Mo.  125;  26  S.  W.  1032. 

Mission  of  Immaculate  Virgin  v.  Cronin,  143  N,  Y.  524;  38  N.  E.  964. 

Smith  V.  Hitchcock,  38  Neb.  104;  56  N.  W.  791. 

Sraeberg  v.  Cunningnam,  96  Mich.  378;  56  N.  W.  73. 

Meacham  v.  Bunting,  156  111.  586;   41  N.  E.  175. 

Norris  v.  He,  152  III.  190;  38  N.  E.  762. 

Watkins  v.  Green,  101  Mich.  493;  60  N.  W.  44. 

Downing  v,  Mayes,  153  111.  330;  38  N.  E.  620. 

Filson  V.  Sirashausen,  130  111.  649;  22  N.  E.  835. 

Pike  V.  Galvin,  29  Me.  183. 

Garibaldi  u.  Shattuck,  70  Cal.  511;  11  P.  778. 

School  District  v.  Benson,  31  Me.  381. 

Happ  V.  Happ,  156  111.  183;  41  N.  E.  39. 

Wheeler  V.  Smith,  62  Mich.  373;  28  N.  W.  907. 

Accretion  and  Avnlsion  Distinguished. 

Nebraska  v.  Iowa,  143  U.  S.  359. 

Opinion  by  Mr.  Justice  Brewer. 

This  is  an  original  suit,  brought  in  this  court  by  the  State  of 
Nebraska  against  the  State  of  Iowa,  the  object  of  which  is  to 
have   the  boundary  line  between   the  two   States   determined. 


ACCRETION    AND    AVULSION    DISTINGUISHED.  523 

Iowa  was  admitted  into  the  Union  in  1846,  and  its  western 
boundiiiy,  as  defined  by  the  act  of  admission,  was  the  middle  of 
the  main  channel  of  the  Missouri  river.  Nebraska  was  admitted 
in  18B7,and  its  eastern  boundary  was  likewise  the  middle  of  the 
channel  of  the  Missouri  river.  Between  1851  and  1877,  in  the 
vicinity  of  Omaha,  there  were  marked  changes  in  the  course  of 
this  channel,  so  that  in  tlie  latter  year  it  occupied  a  very  differ- 
ent bed  from  that  through  which  it  flowed  in  the  former  year. 
Out  of  these  changes  has  come  this  litigation,  the  respective 
States  claiming  jurisdiction  over  the  same  tract  of  land.  To  the 
bill  filed  l)y  the  State  of  Nebraska  the  State  of  Iowa  answered, 
alleging  that  this  disputed  ground  was  part  of  its  territory; 
and  also  filed  a  cross-bill  praying  aflSrmative  relief,  establish- 
ing its  jurisdiction  thereof,  to  which  cross-bill  the  State  of 
Nebraska  answered.  Replications  were  duly  filed  and  proofs 
taken. 

It  is  settled  law  that  when  grants  of  land  border  on  running 
water,  and  the  banks  are  changed  by  that  gradual  process  known 
as  "  accretion,"  the  riparian  owner's  boundary  line  still  remains 
the  stream,  although,  during  the  years,  by  this  accretion,  the 
actual  area  of  his  possessions  may  yary.  In  New  Orleans  v.  U. 
S.,  10  Pet.  662,  717,  this  court  said:  "The  question  is  well 
settled  at  common  law,  that  the  person  whose  land  is  bounded  by 
a  stream  of  water  which  changes  its  course  gradually  by  alluvial 
formations  shall  still  hold  by  the  same  boundary,  including  the 
accumulated  soil.  No  other  rule  can  be  applied  on  just  principles. 
Every  proprietor  whose  land  is  thus  bounded  is  subject  to  loss 
by  the  same  means  which  may  add  to  his  territory;  and,  as  he  is 
without  remedy  for  his  loss  in  this  way,  he  cannot  be  held 
accountable  for  his  gain."  See,  also,  Jones  v.  Soulard,  24  How. 
41  ;  Banks  v.  Ogden,  2  Wall.  57;  Saulet  v.  Shepherd,  4  Wall. 
502;  St.  Clair  v.  Lovingston,  23  Wall.  46;  Jeffries  v.  Land  Co., 
134  U.  S.  178;   10  Sup.  Ct.  Rep.  518. 

It  is  equally  well  settled  that  where  a  stream,  which  is  a  boun- 
dary, from  any  cause  suddenly  abandons  its  old  and  seeks  a  new 
bed,  such  change  of  channel  works  no  change  of  boundary  ;  and 
that  the  boundary  remains  as  it  was,  in  the  center  of  the  old 
channel,  although  no  water  may  be  flowing  therein.  This  sud- 
den and  rapid  change  of  channel  is  termed,  in  the  law,  "  avul- 
.sion."  In  Gould  Waters,  §  159,  it  is  said:  "  But  if  the  change 
is  violent  and  visible,  and  arises  from  a  known  cause  such  as  a 
freshet,  or  a  cut  through  which  a  new  channel  is  formed,  the 
original  thread  of  the  stream  continues  to  mark  the  limits  of  the 
two  estates."  2  Bl.  Comm.  262;  Aug.  Water-Courses,  §  60; 
Trustees  V.  Dickinson,  8  Cush.  544;  Buttenuth  v.  Bridge  Co., 


524  TITLE    BY   ORIGINAL    ACQUISITION. 

123  111.  535;  17  N.  E.  Rop.  439;  H.igiin  v.  Campbell,  8  Port. 
(Ala.)  9;  Muiry  v.  Sermon,  1  Hawks,  5(). 

These  propositions,  which  are  universally  recognized  as  cor- 
rect where  the  boundaries  of  private  property  touch  on  streams, 
are  in  like  manner  recognized  where  the  boundaries  between 
States  or  nations  are,  by  prescription  or  treaty,  found  in  running 
water.  Accretion,  no  matter  to  which  side  it  addsgrouud,  leaves 
the  boundary  still  the  center  of  the  ciiannel.  Avulsion  has  no 
effect  on  boundary,  but  leaves  it  in  the  center  of  the  old  chan- 
nel. In  volume  8,  Op.  Attys.  Gen.  U.  S.  175,  177,  this  matter 
received  exhaustive  consideration.  A  dispute  arose  between  our 
government  and  Mexico  in  consequence  of  the  changes  in  the 
Rio  Bravo.  The  matter  having  been  referred  to  Attorney-Gen- 
eral Cushing,  he  replied  at  length.  We  quote  largely  from  that 
opinion.     After  stating  the  case,  he  proceeds  :  — 

"  With  such  conditions,  whatever  changes  happen  to  either 
bank  of  the  river  by  accretion  on  the  one  or  degradation  of  the 
other, — that  is  by  the  gradual,  and,  as  it  were,  insensible,  ac- 
cession or  abstraction  of  mere  particles, — the  river  as  it  runs 
continues  to  be  the  boundary.  One  country  may,  in  process  of 
time,  lose  a  little  of  its  territory,  and  the  other  gain  a  little, 
but  the  territorial  relations  cannot  be  reversed  by  such  imper- 
ce[)tible  mutations  in  the  course  of  the  river.  The  general 
aspect  of  things  remains  unchanged.  And  the  convenience  of 
allowing  the  river  to  retain  its  previous  function,  notwithstand- 
ing such  insensible  changes  in  its  course,  or  in  either  of  its 
banks,  outweighs  the  inconveniences,  even  to  the  injured  party, 
involved  in  a  detriment,  which,  happening  gradually,  is  inap- 
preciable in  the  successive  moments  of  its  progression. 

"But,  on  the  other  hand,  if,  deserting  its  original  bed,  the 
river  forces  for  itself  a  new  channel  in  another  direction,  then 
the  nation  through  whose  territory  the  river  thus  breaks  its  way 
suffers  injury  by  the  loss  of  territory  greater  than  the  benefit  of 
retaining  the  natural  river  boundary,  and  that  boundary  remains 
in  the  middle  of  the  deserted  river-bed.  For,  in  truth,  just  as 
a  stone  pillar  constitutes  a  boundary,  not  because  it  is  a  stone, 
but  because  of  the  place  in  which  it  stands,  so  a  river  is  made 
the  limit  of  nations,  not  because  it  is  running  water  bearing  a 
certain  geographical  name,  but  because  it  is  water  flowing  in  a 
given  channel,  and  within  given  banks,  which  are  the  real  inter- 
national boundary. 

"  Such  is  the  received  rule  of  the  law  of  nations  on  this  point, 
as  laid  down  by  all  the  writers  of  authority.  See  ex.  gr.^  PutF- 
end  Jus.  Nat.  lil).  iv,  cap.  7,  s.  ii  ;  Gundling  Jus.  Nat.,  p.  248, 
Wolff  Jus.    Gentium,  ss.   106-109;   Vattel  Droit  des  Gens.  liv. 


ACCRETION    AND    AVULSION    DISTINGUISHED.  525 

i.  c.  22,  s.  2G8,  270;  Stypmanni,  Jus.  Miirit,  cai).  v.  n.  47()- 
552;  Knynoval  Droit  do  la  Nature,  loin.  i.  ]).  307;  Merlia 
Keperloiie,  ss.  voc.  ulluv." 

Further  reference  is  made  in  the  opinion  to  the  following 
authorities:  — 

"  Don  Antonio  Riquelme  states  the  doctrine  as  follows:  — 

"  '  When  a  river  changes  its  course,  directing  its  currents 
through  the  territory  of  one  of  the  two  coterminous  States,  the 
bed  which  it  leaves  dry  remains  the  property  of  the  State  (or 
States)  to  which  the  river  belonged,  that  being  retained  as  the 
limit  between  the  two  nations,  and  the  river  enters  so  far  into  the 
exclusive  dominion  of  the  nation  through  whose  territory  it  takes 
the  new  course.  Nations  must,  of  necessity,  submit  their  rights 
to  these  great  alterations  which  nature  predisposes  and  consum- 
mates. *  *  *  But  when  the  change  is  not  total,  but  pro- 
gressive only,  — that  is  to  say,  when  the  river  does  not  aban- 
don either  State,  but  only  gradually  shifts  its  course  by  accre- 
tions,—  then  it  continues  still  to  be  the  boundary,  and  the 
augmentation  of  territory  which  one  country  gains  at  the  expense 
of  the  other  is  to  be  held  by  it  as  a  new  acquisition  of  property.' 
Derecho  Internacional,  tom.  i.  p.  83. 

"  Don  Andres  Bello  and  Don  Jose  Maiia  de  Pando  both  enun- 
ciate the  doctrine  in  exactly  the  same  words,  namely  :  — 

'**  When  a  river  or  lake  divides  two  territories,  whether  it 
belong  in  common  to  the  coterminous  riparian  States,  or  they 
possess  it  by  halves,  or  one  of  them  occupies  it  exclusively,  the 
rights  which  either  has  in  the  lake  or  river  do  not  undergo  any 
change  by  reason  of  alluvion.  The  lands  insensibly  invaded  by 
the  water  are  lost  by  one  of  the  riparian  States,  and  those  which 
the  water  abandons  on  the  op[)osite  bank  increase  the  domain  of 
the  other  State.  But  if,  by  any  natural  accident,  the  water 
which  separates  the  two  States  enters  of  a  sudden  into  the  terri- 
tory of  the  other,  it  will  thenceforth  belong  to  the  State  whose 
soil  it  occupies,  and  the  land,  including  the  abandoned  river 
channel  or  bed,  will  incur  no  change  of  master.'  Bello.  Derecho 
Internacional,  p.  38  ;  Pando  Derecho  Internacional,  p.  99. 

"  Almeda  refers  to  the  same  point  briefly,  but  in  decisive 
terms.     He  says:  — 

"  '  As  the  river  belongs  to  the  two  nations,  so,  also,  the  river- 
bed, if  by  chance  it  become  dry,  is  divided  between  them  as 
proprietors.  When  the  river  changes  its  course,  throwing  itself 
on  one  of  two  coterminous  States,  it  then  comes  to  belong  to 
the  State  through  whose  territory  it  runs,  all  community  of 
right  in  it  so  far  ceasing.'     Derecho  Publico,  torn.  i.  p.  199. 

♦'  Leaving  authorities  of  this  class,  then,  let  us  come  to  those 


52G  TITLE    BY    ORIGINAL    ACQUISITION. 

which  (liscu83  the  question  in  its  lehitioii  to  [)rivate  rights,  and 
SIS  ii  doctriiio  of  municipal  jurisprudence. 

"The  doctrine  is  trau'^niiLted  to  us  from  the  hiw  of  Rome. 
Just.  Inst.  lib.  ii.  tit.  i.  ss.  20-24  ;  Dig.  lib.  xii,  tit.  i,  1,  7.  See 
J.  Voet  ad  Pandect,  tom.  i,  pp.  G06,  G07  ;  Heincc.  Recit.  lib. 
ii,  tit.  2,  ss.  358-369;  Struvii  Syntag.  ex.41  cc.  33-35;  Bowers' 
Civil  Law,  c.  14. 

"  Don  Alfonso  transferred  it  from  the  civil  law  to  the  Parti- 
das.  Partida  iii,  tit.  28,  I.  31.  Thus  it  came  to  be,  as  it  still 
remains,  an  established  element  of  the  laws  of  Sj)ain  and  of 
Mexico.  Alvarez  Instituciones,  lib.  ii,  tit.  i,  s.  6  ;  Asso.  Insti- 
tuciones,  p.  101;  Gomez  de  la  Serna  Elementos,  lib.  ii,  tit.  4, 
sec.  3,  no.  2  ;  Escriche  Dis  s.  voce,  accession  natural,  aluvion, 
avulsion;  Febrero  Mexicano,  tom.  1,  p.  161;  Sala  Mexican© 
(Ed.  1845),  tom.  ii,  p.  62. 

"  The  same  doctrine,  starting  from  the  same  point  of  depart- 
ure, made  its  way  through  the  channel  of  Bracton,  into  the  laws 
of  England,  and  thence  to  the  United  States.  Bracton  de  Legg. 
Angline,  lib.  2,  cap.  2,  fol.  9  ;  2  Bl.  Comm.,  p.  2G2;  Wool. 
Waters,  p.  34;  Ang.  Water  Courses,  c.  2;  Lynch  v.  Allen,  4 
Dev.  &  B.  62;  Murry  v.  Sermon,  1  Hawks,  p.  56;  King  v. 
Yarborough,  3  Barn.  &  C.  p.  91;  Id.  2  Bligh  (N.  S.),  p.  147. 

'*  Such,  beyond  all  possible  controversy,  is  the  public  law  of 
modern  Europe  and  America;  and  such,  also,  is  the  municipal 
law  both  of  the  Mexican  republic  and  the  United  States." 

Vattel  states  the  rule  thus  at  page  121  (book  1,  c.  22,  § 
268):  — 

"If  a  territory  which  terminates  on  a  river  has  no  other 
boundary  than  that  river,  it  is  one  of  those  territories  that  have 
natural  or  intermediate  bounds  {territoria  arcifinia)^  and  it 
enjoys  the  right  of  alluvion  ;  that  is  to  say,  every  gradual  in- 
crease of  soil,  every  addition  which  the  current  of  the  river  may 
make  to  its  bank  on  that  side,  is  an  addition  to  that  territory, 
stands  in  the  same  predicament  with  it,  and  belongs  to  the  same 
owner.  For,  if  I  take  possession  of  a  piece  of  land,  declaring 
that  I  will  have  for  its  boundary  the  river  which  washes  its  side, 
or  if  it  is  given  to  me  upon  that  footing,  I  thus  acquired  before- 
hand the  right  of  alluvion;  and,  consequently,  I  alone  may 
appropriate  to  myself  whatever  additions  the  current  of  the 
river  may  insensibly  make  to  my  land.  I  say  '  insensibly,'  be- 
cause, in  the  very  uncommon  case  called  *  avulsion,'  when  the 
violence  of  the  stream  separates  a  considerable  part  from  one 
piece  of  land  and  joins  it  to  another,  but  in  such  manner  that 
it  can  still  be  identified,  the  property  of  the  soil  so  removed 
naturally   continues  vested  in  its  former  owner.     The  civil  laws 


ACCRETION    AND    AVULSION    DISTINGUISHED.  527 

have  thus  provided  against  and  decided  this  case  when  it  happens 
between  individual  and  individual.  They  ought  to  unite  equity 
with  the  welfare  of  the  State, and  the  care  of  preventing  litigations. 

"  In  case  of  doubt,  every  territory  terminating  on  a  river  is 
presumed  to  have  no  other  boundary  than  the  river  itself, 
because  nothing  is  more  natural  than  to  take  a  river  for  a  boun- 
dary, when  a  settlement  is  made  ;  and  wherever  there  is  a  doubt, 
that  is  always  to  be  presumed  which  is  most  natural  and  most 
probable. 

"  As  soon  as  it  is  determined  that  a  river  constitutes  the 
boundary  line  between  two  territories,  whether  it  remains  com- 
mon to  the  inhabitants  on  each  of  its  banks,  or  whether  each 
shares  half  of  it,  or,  finally,  whether  it  belongs  entirely  to  one 
of  them,  their  rights,  with  respect  to  the  river,  are  in  nowise 
changed  by  the  alluvion.  If,  therefore,  it  happens  that,  by  a 
natural  effect  of  the  current,  one  of  the  two  territories  receives 
an  increase,  while  the  river  gradually  encroaches  on  the  oppo- 
site bank,  the  river  still  remains  the  natural  boundary  of  the 
two  territories,  and,  notwithstanding  the  progressive  changes 
in  its  course,  each  retains  over  it  the  same  rights  which  it  pos- 
sessed before;  so  that,  if,  for  instance,  it  be  divided  in  the 
middle  between  the  owners  of  the  opposite  banks,  that  middle, 
though  it  changes  its  place,  will  continue  to  be  the  line  of  separa- 
tion between  the  two  neighbors.  The  one  loses,  it  is  true,  while 
the  other  gains;  but  nature  alone  produces  this  change;  she 
destroys  the  land  of  the  one,  while  she  forms  new  land  for  the 
other.  The  case  cannot  be  otherwise  determined,  since  they 
have  taken  the  river  alone  for  their  limits. 

"  But  if,  instead  of  a  gradual  and  progressive  change  of  its 
bed,  the  river,  by  an  accident  merely  natural,  turns  entirely  out 
of  its  course,  and  runs  into  one  of  the  two  neighboring  States, 
the  bed  which  it  has  abandoned  becomes,  thenceforward,  their 
boundary,  and  remains  the  property  of  the  former  owner  of  the 
river.  (Section  267.)  The  river  itself  is,  as  it  were,  annihi- 
lated in  all  that  part,  while  it  is  reproduced  in  its  new  bed,  and 
there  belongs  only  to  the  State  in  which  it  flows." 

The  result  of  these  authorities  puts  it  beyond  doubt  that 
accretion  on  an  ordinary  river  would  leave  the  boundary  between 
two  States  the  varying  center  of  the  channel,  and  that  avulsion 
would  establish  a  fixed  boundary,  to  wit,  the  center  of  the  aban- 
doned channel.  It  is  contended,  however,  that  the  doctrine  of 
accretion  has  no  application  to  the  Missouri  river,  on  account  of 
the  rapid  and  great  changes  constantly  going  on  in  respect  to 
its  banks  ;  but  the  contrary  has  already  been  decided  by  this 
court  in  Jefferis  v.  Land  Co.,  134  U.  S.  178,  189;  10  Sup.  Ct. 


528  TITLE    BY    ORIGINAL    ACQUISITION. 

Rep.  518.  A  question  between  individuals,  growing  out  of 
changes  in  the  very  place  now  in  controversy  was  then  befr.re 
this  court ;  and  in  the  opinion,  after  referring  to  the  general 
rule,  it  was  observed:  "It  is  contended  by  the  defendant  that 
this  well-settled  rule  is  not  applicable  to  land  which  borders  on 
the  Missouri  river  because  of  the  peculiar  character  of  that 
stream,  and  of  the  soil  through  which  it  flows,  the  course  of  the 
river  being  tortuous,  the  current  rapid  and  the  soil  a  soft, 
sandy  loam,  not  protected  from  the  action  of  water  either  by 
rocks  or  the  roots  of  trees  ;  the  effect  being  that  the  river  cuts 
away  its  banks,  sometimes  in  a  large  body,  and  makes  for 
itself  a  new  course,  while  the  earth  thus  removed  is  almost  sim- 
ultaneously deposited  elsewhere,  and  new  land  is  formed  almost 
as  rapidly  as  the  former  bank  was  carried  away.  But  it  has 
been  held  by  this  court  that  the  general  law  of  accretion  is 
applicable  to  land  on  the  Mississippi  river;  and,  that  being  so, 
although  the  changes  on  the  Missouri  river  are  greater  and  more 
rapid  than  on  the  Mississippi,  the  difference  does  not  constitute 
such  a  difference  in  principle  as  to  render  inapplicable  to  the 
Missouri  river  the  general  rule  of  law."  It  is  true  that  that  case 
came  here  on  demurrer  to  a  bill,  and  it  was  alleged  in  the  bill 
that  the  land  was  formed  by  "  imperceptible  degrees,"  and  that 
the  process  of  accretion  "  went  on  so  slowly  that  it  could  not  be 
observed  in  its  progress;  but,  at  intervals  of  not  less  than  three 
or  more  months  it  could  be  discerned  by  the  eye  that  additions 
greater  or  less  had  been  made  to  the  shore."  The  state  of  facts 
disclosed  by  this  averment  was  held  not  to  take  the  case  out  of 
the  law  concerning  accretion,  and,  after  referring  to  some  Eng- 
lish authorities, it  was  said:  *'  The  doctrine  of  the  English  cases 
is  that  accretion  is  an  addition  to  land  coterminous  with  the 
water,  which  is  formed  so  slowly  that  its  progress  cannot  be  per- 
ceived, and  does  not  admit  of  the  view  that,  in  order  to  be 
accretion,  the  formation  must  be  one  not  discernible  by  com- 
parison at  two  distant  points  of  time."  And  then  was  quoted 
from  the  opinion  in  St.  Clair  v.  Lovingston,  23  Wall.  46,  these 
words:  *'  The  test  as  to  what  is  gradual  and  imperceptible  in  the 
sense  of  the  rule  is  that,  though  the  witnesses  may  see  from  time 
to  time  that  progress  has  been  made,  they  could  not  perceive  it 
while  the  process  was  going  on." 

The  case  before  us  is  presented  on  testimony,  and  not  on 
allegation.  But  what  are  the  facts  apparent  from  that  testi- 
mony? The  Missouri  river  is  a  winding  stream,  coursing  through 
a  valley  of  varying  width,  the  substratum  of  whose  soil,  a 
deposit  of  distant  centuries,  is  largely  of  quicksand.  In  build- 
ing the  bridge  of  the  Union   Pacitic  Railway   Company  across 


ACCRETION    AND    AVULSION    DISTINGUISHED.  529 

the  Missouri  river  in  the  vicinity  of  the  tracts  in  controversy, 
the  builders  went  clown  to  the  solid  rock,  G5  feet  below  the 
surface,  and  there  found  a  pine  log  a  foot  and  a  half  in  diam- 
eter,—  of  course,  a  deposit  made  in  the  long  ago.  The  current 
is  rapid,  far  above  the  average  of  ordinary  rivers;  and  by 
reason  of  the  snows  in  the  mountains  there  are  two  well-known 
rises  in  the  volume  of  its  waters,  known  as  the  April  and  June 
rises.  The  large  volume  of  water  pouring  down  at  the  time 
of  these  rises,  with  the  rapidity  of  its  current,  has  great  and 
rapid  action  upon  the  loose  soil  of  its  banks.  Whenever  it 
impinges  with  direct  attack  upon  the  bank  at  a  bend  of  the 
stream,  and  that  l)ank  is  of  the  loose  sand  obtaining  in  the  valley 
of  the  Missouri,  it  is  not  strange  that  the  abrasion  and  was^hing 
away  is  rapid  and  great.  Frequentl}^,  where  above  the  loose 
substratum  of  sand  there  is  a  deposit  of  comparatively  solid 
soil,  the  washing  out  of  the  underlyino;  sand  causes  an  instanta- 
neous  fall  of  quite  a  length  and  breadth  of  the  superstratum  of 
soil  into  the  river,  so  that  it  niay,  in  one  sense  of  the  term,  be 
said,  that  the  diminution  of  the  banks  is  not  gradual  and  im- 
perct  ptible,  but  sudden  and  visible.  Notwitlistanding  this, 
two  things  must  be  borne  in  mind,  familiar  to  all  dwellers 
on  the  banks  of  the  Missouri  river,  and  disclosed  by  the  tes- 
timony :  that,  while  there  may  be  an  instantaneous  and  obvious 
dropping  into  the  river  of  quite  a  portion  of  its  banks,  such 
portion  is  not  carried  down  the  stream  as  a  solid  and  compact 
mass,  but  disintegrates  and  separates  into  particles  of  earth  borne 
onward  by  the  flowing  water,  and  giving  to  the  stream  that  color, 
which,  in  the  history  of  the  country,  has  made  it  known  as  the 
«<  muddy  "  Missouri;  and  also  that,  while  the  disappearance,  by 
reason  of  this  process,  of  a  mass  of  bank  may  be  sudden  and 
obvious,  there  is  no  transfer  of  such  a  solid  body  of  earth  to 
the  opposite  shore,  or  anything  like  an  instantaneous  and  visible 
creation  of  a  bank  on  that  shore.  The  accretion,  whatever  may 
be  the  fact  in  respect  to  the  diminution,  is  always  gradual,  and 
by  the  imperceptible  deposit  of  floating  particles  of  earth. 
There  is,  except  in  such  cases  of  avulsion  as  may  be  noticed 
hereafter,  in  all  matter  of  increase  of  bank,  always  a  mere 
gradual  and  imperceptible  process.  There  is  no  heaping  up  at 
an  instant,  and  while  the  eye  rests  upon  the  stream,  of  acres  or 
rods  on  the  forming  side  of  the  river.  No  engineering  skill  is 
sufficient  to  say  where  the  earth  in  the  bank  washed  away  and 
disintegrating  into  the  river  finds  its  rest  and  abiding  place.  The 
falling  bank  has  passed  into  the  floating  mass  of  earth  and  water, 
and  the  particles  of  earth  may  rest  one  or  fifty  miles  below,  and 
upon  either  shore.     There  is,  no  matter  how  rai)id  the  process 


530  TITLE   BT   ORIGINAL    ACQUISITION. 

of  subtraction  or  jiddition,  no  (letachnicnt  of  earth  from  the 
one  side  and  deposit  of  the  same  upon  the  other.  The  only 
thing  which  distinguishes  this  river  from  other  streams,  in  the 
matter  of  accretion,  is  in  the  rapidity  of  the  cliange,  caused  by 
the  velocity  of  the  current,  and  this,  in  itself,  in  the  very  nature 
of  things,  works  no  change  in  the  principle  underlying  the  rule 
of  law  in  respect  thereto. 

Our  conclusions  are  that,  notwithstanding  the  rapidity  of  the 
changes  in  the  course  of  the  channel,  and  the  washing  from 
the  one  side  and  onto  the  other,  the  law  of  accretion  controls  on 
the  Missouri  river  as  elsewhere ;  and  that  not  only  in  respect  to 
rights  of  individual  land-owners,  but  also  in  respect  to  the 
boundary  line  between  States.  The  boundary,  therefore,  betvveen 
Iowa  and  Nebraska  is  a  varying  line,  so  far  as  affected  by 
these  changes  of  diminution  and  accretion  in  the  mere  washing 
of  the  waters  of  the  stream. 

It  appears,  however,  from  the  testimony,  that  in  1877  the 
river  above  Omaha,  which  had  pursued  a  course  in  the  nature  of 
an  ox-bow,  suddenly  cut  through  the  neck  of  the  bow  and  made 
for  itself  a  new  channel.  This  does  not  come  within  the  law  of 
accretion,  but  that  of  avulsion.  By  this  selection  of  a  new 
channel  the  boundary  was  not  changed,  and  it  remained,  as  it 
was  prior  to  the  avulsion,  the  center  line  of  the  old  channel; 
and  that,  unless  the  waters  of  the  river  returned  to  their  former 
bed,  became  a  fixed  and  unvarying  boundary,  no  matter  what 
might  be  the  changes  of  the  river  in  its  new  channel. 

We  think  we  have,  by  these  observations,  indicated  as  clearly 
as  is  possible  the  boundary  between  the  two  States,  and  upon 
tfiese  principles  the  parties  may  agree  to  a  designation  of  such 
boundary,  and  such  designation  will  pass  into  a  final  decree.  If 
no  agreement  is  possible,  then  the  court  will  appoint  a  com- 
mission to  survey  and  report  in  accordance  with  the  views 
herein  expressed. 

The  costs  of  this  suit  will  be  divided  between  the  two  States, 
because  the  matter  involved  is  one  of  those  governmental  ques- 
tions in  which  each  party  has  a  real  and  vital,  and  yet  not  a 
litigious,  interest. 

Title  by  Accretion  —  Aerolite  Falling  Upon  Liand. 

Goodard  v.  Winchell,  86  Iowa,  71 ;  52  N.  W.  1124. 

Granger,  J.  The  district  court  found  the  following  facts, 
with  some  others  not  important  on  this  trial :  First.  '*  That  the 
plaintiff,  John  Goodard,  is,  and  has  been  since  about  1857,  the 
owner  in  fee  simple  of  the  north  half  of  section  number  three, 


TITLE  BY  ACCRETION AEROLITE  FALLING  UPON  LAND.      531 

in  township  number  ninety -eifrht,  range  number  Ivveuly-fivo,  in 
Winnebago  County,  Iowa,  and  was  such  owner  at  the  time  of  the 
fall  of  the  meteorite  hereinafter  referred  to.  Second.  That  said 
land  was  prairie  land,  and  tiiat  the  grass  privilege  for  the  year 
1890  was  leased  to  one  James  Elickson.  Third.  That  on  the 
second  day  of  May,  1890,  an  aerolite  passed  over  northern  and 
northwestern  Iowa,  and  the  aerolite,  or  fragment  of  the  same, 
in  question  in  this  action,  weighing,  when  replevied,  and  when 
produced  in  court  on  the  trial  of  this  cause,  about  sixty-six 
pounds,  fell  onto  plaintiff's  land,  described  above,  and  buried 
itself  in  the  ground  to  a  depth  of  three  feet,  and  became  imbedded 
therein  at  a  point  about  twenty  rods  from  the  section  line  on  the 
north.  Fourth.  That  the  day  after  the  aerolite  in  question  fell 
it  was  dug  out  of  the  ground  with  a  spade  by  one  Peter  Hoagland, 
in  the  presence  of  the  tenant,  Elickson  ;  that  said  Hoagland  took  it 
to  his  house,  and  claimed  to  own  same,  for  the  reason  th:it  he  had 
found  same  and  dug  it  up.  Fifth.  That  on  May  5,  1890,  Hoag- 
land sold  the  aerolite  in  suit  to  the  defendant,  H.  V.  Winchell, 
for  one  hundred  and  five  dollars,  and  the  same  was  at  once 
taken  possession  of  by  the  said  defendant,  and  that  the  posses- 
sion was  held  by  him  until  same  was  taken  under  the  writ  of 
replevin  herein;  that  defendant  knew  at  the  time  of  his  purchase 
that  it  was  an  aerolite,  and  that  it  fell  on  the  prairie  south  of 
Hoagland's  land.  *  *  *  Tenth.  I  find  the  value  of  said 
aerolite  to  be  one  hundred  and  one  dollars  ($101)  as  verbally 
stipulated  in  open  court  by  the  parties  to  this  action  ;  that  the 
same  weighs  about  sixty-six  pounds,  is  of  a  black,  smoky  color 
on  the  outside,  showing  the  effect  of  heat,  and  of  a  lighter  and 
darkish  gray  color  on  the  inside  ;  that  it  is  an  aerolite,  and  fell 
from  the  heavens  on  the  second  of  May,  1890  ;  that  a  member  of 
Hoagland's  family  saw  the  aerolite  fall,  and  directed  him  to  it." 
As  conclusions  of  law,  the  district  court  found  that  the  aerolite 
became  a  part  of  the  soil  on  which  it  fell  ;  that  the  plaintiff  was 
the  owner  thereof;  and  that  the  act  of  Hoagland  in  removing  it 
was  wrongful.  It  is  insisted  by  the  appellant  that  the  con- 
clusions of  law  are  erroneous  ;  that  the  enlightened  demands 
of  the  time  in  which  we  live  call  for,  if  not  a  modifica- 
tion, a  liberal  construction,  of  the  ancient  rule,  "  that  what- 
ever is  affixed  to  the  soil  belongs  to  the  soil,"  or,  the  more 
modern  statement  of  the  rule,  that  "  a  permanent  annexation 
to  the  soil  of  a  thing  in  itself  personal  makes  it  a  part  of  the 
realty."  In  behalf  of  appellant  is  invoked  a  rule  alike  ancient 
and  of  undoubted  merit,  "  that  of  title  by  occupancy;  "  and  we 
are  cited  to  the  language  of  Blackstone,  as  follows;  "Occu- 
pancy is  the  taking   possession    of   those    things  which   before 


532  TITLE    BY    ORIGINAL    ACQUISITION. 

belonged  to  nobody;"  and  "whatever  movables  are  found 
upon  the  surface  of  the  earth,  or  in  the  sea,  and  are  unelaitned 
by  any  owner,  and  supposed  to  be  abandoned  by  the  last  pro- 
prietor, and  as  such  are  returned  into  the  common  stock  and 
mass  of  things  ;  and  therefore  they  belong,  as  in  a  state  of 
nature,  to  the  first  occupant  or  finder."  In  determining  which 
of  these  rules  is  to  govern  in  this  case,  it  will  be  well  for  us  to 
keep  in  mind  the  controlling  facts  giving  rise  to  the  different 
rules,  and  note  wherein,  if  at  all,  the  facts  of  this  case  should 
distinguish  it.  The  rule  sought  to  be  avoided  has  alone  refer- 
ence to  what  becomes  a  part  of  the  soil,  and  hence  belongs  to 
the  owner  thereof,  because  attached  or  added  thereto.  It  has 
no  reference  whatever  to  an  independent  acquisition  of  title  — 
that  is,  to  an  acquisition  of  property  existing  independent  of 
other  property.  The  rule  invoked  has  reference  only  to  prop- 
erty of  this  independent  character,  for  it  speaks  of  movables 
•'found  upon  the  surface  of  the  earth  or  in  the  sea."  The 
term  "  movables"  must  not  be  construed  to  mean  that  which 
can  be  moved,  for,  if  so,  it  would  include  much  known  to  be 
realty;  but  it  means  such  things  as  are  not  naturally  parts  of 
earth  or  sea,  but  are  on  the  one  or  in  the  other.  Animals  exist 
on  the  earth  and  in  the  sea,  but  they  are  not,  in  a  proper  sense, 
parts  of  either.  If  we  look  to  the  natural  formation  of  the 
earth  and  sea,  it  is  not  difficult  to  understand  what  is  meant  by 
"  movables,"  within  the  spirit  of  the  rule  cited.  To  take  from 
the  earth  what  nature  has  placed  there  in  its  formation,  whether 
at  the  creation  or  through  the  natural  processes  of  the  acquisition 
and  depletion  of  its  particular  parts,  as  we  witness  it  in  our 
daily  observations,  whether  it  be  the  soil  proper  or  some  natural 
deposit,  as  of  mineral  or  vegetable  matter,  is  to  take  part  of 
the  earth,  and  not  movables. 

If,  from  what  we  have  said,  we  have  in  mind  the  facts  giving 
rise  to  the  rules  cited,  we  may  well  look  to  the  facts  of  this  case 
to  properly  distinguish  it.  The  subject  of  the  dispute  is  an  aero- 
lite, of  about  sixty-six  pounds  weight,  that  "  fell  from  the 
heavens"  on  the  land  of  the  plaintiff  and  was  found  three  feet 
below  the  surface.  It  came  to  its  position  in  the  earth  through 
natural  causes.  It  was  one  of  nature's  deposits,  with  nothing  in 
its  material  composition tomake  it  foreign  or  unnatural  to  the  soil. 
It  was  not  a  movable  thing  "  on  the  earth."  It  was  in  the  earth, 
and  in  a  very  significant  sense  immovable  —  that  is,  it  was  only 
movable  as  parts  of  earth  are  made  movable  by  the  hand  of  man. 
Except  for  the  peculiar  manner  in  which  it  came,  its  relation  to 
the  soil  would  be  beyond  dispute.  It  was  in  its  substance,  as 
we  understand,  a  stone.     It  was  not  of  a  character  to  be  thought 


TITLE    BY    ACCRETION AEROLITE     FALLING    UPON    LAND.       533 

of  as  ♦*  unclaimed  by  any  owner,"  and,  because  unclaimed, 
"  supposed  to  be  abandoned  by  the  last  proprieter,"  as  should 
be  the  case  under  the  rule  invoked  by  appellant.  In  fact,  it  has 
none  of  the  characteristics  of  the  property  contemplated  by  such 
a  ride. 

We  may  properly  note  some  of  the  particular  claims  of  appel- 
lant. His  arjxument  deals  with  the  rules  of  the  common  law  for 
acquiring  real  property,  as  by  escheat,  occupancy,  prescription, 
forfeiture,  and  alienation,  which  it  is  claimed  were  all  the  meth- 
ods known,  barring  inheritance.  We  need  not  question  the 
correctness  of  the  statement,  assuming  that  it  has  reference  to 
original  acquisition,  as  distinct  from  acquisitions  to  soil  already 
owned,  by  accretion  or  natural  causes.  The  general  rules  of  the 
law,  by  which  the  owners  of  riparian  titles  are  made  to 
lose  or  gain  by  the  doctrine  of  accretions,  are  quite 
familiar.  These  rules  are  not,  however,  of  exclusive  appli- 
cation to  such  owners.  Through  the  action  of  the  elements, 
wind  and  water,  the  soil  of  one  man  is  taken  and  deposited 
in  the  field  of  another;  and  thus  all  over  the  country, 
we  may  say,  changes  are  constantly  going  on.  By  these 
natural  causes  the  owners  of  the  soil  are  giving  and  taking  as 
the  wisdom  of  the  controlling  forces  shall  determine.  By  these 
operations  one  may  be  affected  with  a  substantial  gain,  and 
another  by  a  similar  loss.  These  gains  are  of  accretion,  and  the 
deposit  becomes  the  property  of  the  owner  of  the  soil  on  which 
it  is  made. 

A  scientist  of  note  has  said  that  from  six  to  seven  hundred  of 
these  stones  fall  to  our  earth  annually.  If  they  are,  as  indicated 
in  argument,  departures  from  other  planets,  and  if  among  the 
planets  of  the  solar  system  there  is  this  interchange,  bearing 
evidence  of  their  material  composition,  upon  what  principle  of 
reason  or  authority  can  we  say  that  a  deposit  thus  made  shall 
not  be  of  that  class  of  property  that  it  would  be  if  originally  of 
this  planet  and  in  the  same  situation?  If  these  exchanges 
have  been  2:()in2  on  through  the  countless  ages  of  our 
planetary  system,  who  shall  attempt  to  determine  what 
part  of  the  rocks  and  formations  of  especial  value  to  the 
scientist,  resting  in  and  upon  the  earth,  are  of  meteoric  acquisi- 
tion, and  a  part  of  that  class  of  property  designated  in  argument 
as  **  unowned  things,"  to  be  the  property  of  the  fortunate  finder 
instead  of  the  owner  of  the  soil,  if  the  rule  contended  for  is  to 
obtain?  It  is  not  easy  to  understand  why  stones  or  balls  of 
metallic  iron,  deposited  as  this  was,  should  be  governed  by  a 
different  rule  than  obtains  from  the  deposit  of  boulders,  stones, 
and  drift  upon  our  prairies    by  glacier  action;    and  who  would 


534  TITLE    BY    OHIOINAL    ACQUISITION. 

contend  that  these  deposits  from  floating  bodies  of  ice  belong, 
not  to  the  owner  of  the  soil,  but  to  the  Hnder?  Their  origin  or 
source  may  bo  less  mysterious,  but  they,  too,  are  *'  tell-tale 
messengers  "  from  far-oif  lands,  and  have  value  for  historic  and 
scientific  investigation. 

It  is  said  that  the  aerolite  is  without  adaptation  to  the  soil, 
and  only  valuable  for  scientific  purposes.  Nothing  in  the  facts 
of  the  case  will  warrant  us  in  saying  thiit  it  was  not  as  well 
adapted  for  use  by  the  owner  of  the  soil  as  any  stone,  or,  as 
appellant  is  pleased  to  denominate  it,  «'  ball  of  metallic  iron." 
That  it  may  be  of  greater  value  for  scientific  or  other  purposes 
may  be  admitted,  hut  that  fact  has  little  weight  iu  determin- 
ing who  should  be  its  owner.  We  cannot  say  that  the  owner  of 
the  soil  is  not  as  interested  in,  and  would  not  as  readily  con- 
tribute to,  the  great  cause  of  scientific  advancement  as  the  finder, 
by  chance  or  otherwise,  of  these  silent  messengers.  This  aero- 
lite is  of  the  value  of  one  hundred  and  one  dollars,  and  this 
fact,  if  no  other,  would  remove  it  from  uses  where  other  and 
much  less  valuable  materials  would  answer  an  equally  good  pur- 
pose and  place  it  in  the  sphere  of  its  greater  usefulness. 

The  rule  is  cited,  with  cases  for  its  support,  that  the  finder 
of  lost  articles  even  where  they  are  found  on  the  property,  in 
the  building,  or  with  the  personal  effects  of  third  persons,  is 
the  owner  thereof  against  all  the  world  except  the  true  owner. 
The  correctness  of  the  rule  may  be  conceded,  but  its  applica- 
tion to  the  case  at  bar  is  very  doubtful.  The  subject  of  this 
controversy  was  never  lost  or  abandoned.  Whence  it  came  is 
not  known,  but  under  the  natural  law  of  its  government,  it 
became  a  part  of  this  earth,  and,  we  think,  should  be  treated 
as  such.  It  is  said  by  appellant  that  this  case  is  unique  ;  that  no 
exact  precedent  can  be  found;  and  that  the  conclusion  must  be 
based  largely  upon  new  considerations.  No  similar  question  has, 
to  our  knowledge,  been  determined  in  a  court  of  last  resort.  •  In 
15  American  and  English  Encyclopedia  of  Law,  page  388,  is  the 
following  language  :  *'  An  aerolite  is  the  property  of  the  owner 
of  the  fee  upon  which  it  falls.  Hence  a  pedestrian  on  the  high- 
way, who  is  first  to  discover  such  a  stone,  is  not  the  owner  of  it, 
the  highway  being  a  mere  easement  for  travel."  It  cites  the 
case  of  Maas  v.  Amana  Soc,  16  Alb.  Law.  J.  76,  and  13  Irish 
Law  Times,  381,  each  of  which  i)eriodicals  contains  an  editorial 
notice  of  such  a  case  having  been  decided  in  Illinois,  but  no 
reported  case  is  to  be  found.  Anderson's  Law  Dictionary  states 
the  same  rule  of  law,  with  the  same  references,  under  the  subject 
of  "  Accretions."  In  20  Alb.  Law  J.  299,  is  a  letter  to  the  editor 
from  a  correspondent,  calling  attention  to  a  case  determined  in 


ADVERSE   POSSESSION   UNDER    COLOR    OF   TITLE.  535 

France,  where  an  aerolite  found  by  a  peasant  was  held  not  to  be 
the  property  of  the  "  proprietor  of  the  field,"  but  that  of  the 
finder.  These  references  are  entitled,  of  course,  to  slight,  if 
any,  consideration  ;  the  information  as  to  them  being  too  meager 
to  indicate  the  trend  of  legal  thought.  Our  conclusions  arc 
announced  with  some  doubt  as  to  their  correctness,  but  they  arise 
not  so  much  from  the  applicati(m  of  known  rules  of  law  to 
proper  facts  as  from  the  absence  of  defined  rules  for  these  par- 
ticular cases.  The  interest  manifested  has  induced  us  to  give 
the  case  careful  thought.  Our  conclusions  seem  to  us  nearest 
analogous  to  the  generally  accepted  rules  of  law  bearing  on  kin- 
dred questions,  and  to  subserve  the  ends  of  substantial  justice. 
The  question  we  have  discussed  is  controlling  in  the  case,  and 
we   need  not  consider  others. 

The  judgment  of  the  district  court  is  affirmed. 


Adverse  Possession  Under  Color  of  Title  —  Constructive  Pos- 
session —  Possession    Must  be  Hostile. 

Pharis  v.  Jones,  122  Mo.  125;  26  S.  W.  1032. 

Appeal  from  circuit  court,  Barry  County;  Joseph  Cravens, 
Judge. 

Action  by  D.  P.  Pharis  against  W.  P.  Jones.  Judgment  for 
plaintifl".     Defendant  appeals.     Reversed. 

Burgess,  J.  Ejectment  for  the  S.  W.  \  of  the  S.  W.  \  of  sec- 
tion 29,  township  22,  range  27.  The  petition  is  in  the  usual 
form  and  the  answer  a  general  denial.  The  land  is  timbered. 
At  the  time  plaintiff  obtained  a  quitclaim  deed  for  it  from 
Boon,  —  August  3,  1867,  —  it  was  unfenced,  except  about  two 
acres  on  one  corner,  which  ran  down  into  the  inclosure  of  what 
is  known  as  the  "  Mason  farm."  Littleberry  Mason,  who 
originally  owned  the  farm,  died  in  1853,  leaving  a  widow  and 
eight  children.  His  widow  occupied  by  herself  and  tenant,  a 
part  of  the  farm  of  which  her  husband  died  seised,  which  in- 
cluded within  the  part  inclosed  by  a  fence  the"  two  or  three 
acres  of  the  40-acre  tract  in  controversy  as  above  stated.  Plaintiff 
occupied  a  part  of  the  Mason  farm,  including  said  two  or  three 
acres,  as  Mrs.  Mason's  tenant  until  she  died,  which  was  about 
six  years  before  the  trial.  At  the  time  of  her  death  he  owned  six 
of  the  eiglit  shares  in  the  farm,  and  before  the  trial  he  became 
the  owner  by  purchase  of  the  other  two  shares.  After  August 
3,  1867,  plaintiff  continued  from  time  to  time  to  extend  the  fence 
around  the  Mason  farm  outward  on  the  land  in  controversy,  until 
he  had  some  twenty  acres  inclosed  before  the  commencement  of 


53()  TITLE    liY    OUIUINAL    ACQUISITION. 

Ihi^  suit.  All  this  time  he  claims  to  have  been  clearing  and  hold- 
ing the  land  as  his  own,  and  at  no  time  as  the  tenant  of  Mrs. 
Mason.  Plaintiff,  to  maintain  the  issue  on  his  part,  offered  in 
evidence  the  abstract  of  entries  for  Barry  County  of  the  United 
States  land  office  at  Springfield,  Missouri,  showing  this  land  was 
located  by  Charles  Ingles,  August  28,  1857.  He  next  read  in 
evidence,  over  the  objection  of  defendant,  the  following  deeds  : 
A  deed  from  Sample  Orr,  register  of  lands,  dated  February  20, 
1863,  to  J.  W.  Boon,  for  the  S.  W.  i  of  S.  W.  ^  of  section  29, 
township  23,  range  27,  and  other  lands.  A  quitclaim  deed 
from  J.  W.  Boon  to  D.  P.  Pharis,  dated  August  3,  1867,  for 
the  S.  W.  i  of  S.  W.  i  of  section  29,  township  23,  range  27,  and 
other  lands;  consideration,  $75.  Plaintiff  next  introduced  evi- 
dence tending  to  show  actual  possession  of  the  two  or  three 
acres  in  the  Mason  farm  by  himself  and  those  under  whom  he 
claimed  title  ;  acts  of  ownership  in  cutting  timber,  keeping  off 
trespassers,  the  payment  of  taxes  for  the  years  1872  and  up  to 
1884,  inclusive,  and  the  extension  of  the  inclosure  for  the  last 
20  years,  until  at  the  time  of  the  trial  it  amounted  to  about  20 
acres  of  the  tract  sued  for.  Defendant  claims  title  under  a 
quitclaim  deed  from  the  patentee,  Charles  Ingles,  and  wife, 
dated  May  18,  1891.  The  trial  resulted  in  a  judgment  for 
plaintiff  for  possession  of  the  40-acre  tract  sued  for,  from 
which  defendant,  after  an  unsuccessful  motion  for  a  new  trial, 
and  in  arrest  of  judgment,  appealed  to  this  court.  The  defend- 
ant asks  the  court  to  declare  the  law  to  be  as  follows:  "  (4) 
That  the  possession  and  occupation  of  the  small  portion  of  the 
land  in  controversy  by  D.  P.  Pharis  against  the  real  owner  of 
said  pieces  did  not  start  the  statute  of  limitation  to  running 
against  the  real  owner,  and  in  favor  of  said  Pharis.  (5)  That 
the  possession  and  occupation  of  the  two  small  pieces  of  the 
S.  W.  i  of  the  S.  W.  i,  and  the  N.  E.  i  of  the  S.  W.  i,  of  sec- 
tion 29,  township  23,  range  27,  that  extended  into  Littleberry 
Mason's  field,  was  not  an  adverse  holding  by  D.  P.  Pharis 
against  the  real  owner  of  said  pieces,  and  did  not  start  the 
statute  of  limitations  to  running  against  the  real  owner,  and  in 
favor  of  said  Pharis,  till  after  the  death  of  the  widow  of  Little- 
berry  Mason  in  the  year  1883.  (6)  That  the  possession  and 
occupation  of  the  two  small  pieces  of  the  S.  W.  qr.  of  the  S. 
VV.  qr.,  and  the  N.  E.  qr.  of  the  S.  W.  qr.  of  section  28, 
township  23,  range  27,  that  extended  into  Littleberry  Mason's 
field,  was  not  such  an  adverse  holding  against  the  real  owners 
of  said  lands  by  D.  P.  Pharis,  under  color  of  title  to  the  whole 
one  hundred  acres  of  land  described  in  the  quitclaim  deed 
from   J.   W.  Boon   to   said  Pharis,  as  would  start  the  statute 


ADVERSE   POSSESSION    UNDER    COLOR   OF   TITLE.  537 

of  limitations  to  running  again  in  favor  of  said  Pharia  as  to  the 
uninclosed  portion  of  the  S.  W.  qr.  of  the  S.  W.qr.,  section  29, 
township  23,  raug»i  27,  till  after  the  death  of  the  widow  of  Lit- 
tleberry  Mason,  (7)  The  court  declares  the  law  to  be  that  the 
holdinsr  of  Mrs.  Mason,  beinij  without  color  or  title,  could  not 
extend  beyond  the  land  actually  inclosed,  and  that  the  posses- 
sion of  D.  P.  Pharis,  as  the  grantee  of  Mrs.  Mason  of  the  Mason 
heirs,  only  extended  to  the  two  small  pieces  of  land  inclosed  in 
the  field  beloiiiiino;  to  the  Mason  estate."  The  instructions  were 
all  refused,  and  the  defendant  duly  excepted.  The  deeds  read 
in  evidence  by  plaintiff  were  color  of  title  only. 

It  is  well-settled  law  that  where  land  is  occupied  under  a  mis- 
taken belief  as  to  where  the  true  line  is,  and  with  no  intention  to 
claim  beyond  the  true  line  or  legal  boundary,  such  possession 
will  not  be  held  to  be  adverse  so  as  to  start  the  statute  of  limita- 
tions lo  running  against  the  true  owner.  Thus,  it  was  held  in 
St.  Louis  University  v.  McCune,  28  Mo.  481,  when  a  proprietor 
of  land,  through  a  mistake  or  ignorance  of  location  of  the  true  line 
separating  his  tract  from  that  otadjoining  proprietor,  extendedhis 
fence  beyond  the  true  line,  and  inclosed  a  part  of  the  land  belong- 
ing to  the  adjoining  owner,  that  the  possession  acquired  in  this 
way  did  not  become  adverse.  The  evidence  in  this  case  showed 
conclusively  that  Mrs.  Mason  never  intended  to  claim  as  her  own 
the  two  small  parcels  of  the  tract  in  controversy  that  were  within 
her  inclosure.  Her  possession  was  not,  therefore,  adverse  to 
the  true  owner,  and  did  not  start  the  statute  of  limitations  to 
running  against  him,  and  in  her  favor.  But  even  if  her  pos- 
session has  been  adverse,  as  she  did  not  claim  under  color  of 
title,  she,  and  those  claiming  under  her  in  the  same  way,  could 
only  hold  that  portion  which  they  had  in  actual  possession  for 
the  statutory  period  of  ten  years.  DeGravv  v.  Taylor,  37  Mo. 
311.  As  long  as  plaintiff  occupied  the  Mason  farm  and  the  land 
inclosed  by  fence  as  the  tenant  of  Mrs.  Mason,  his  possession 
was  her  possession,  and  he  could  not  claim  adversely  to  her. 
But  when  he  extended  the  fence  which  inclosed  the  Mason  farm 
out  onto  the  land  in  controversy,  for  the  purpose  of  taking  or 
extending  the  possession,  claiming  it  as  his  own,  from  that  time 
the  possession  was  his,  hostile  and  adverse  to  the  true  owner, 
and  by  virtue  of  his  deed  from  Boon,  which,  being  color  of  title, 
extended  the  possession  to  the  entire  40-acre  tract.  Gaines  v. 
Saunders,  87  Mo.  557;  Pharis  v.  Bayless  (Mo.  Sup.,  May  24, 
1894),  26  S.  W.  1030.  Thus,  it  is  saidinKead  v.  Allen,  63  Tex. 
154:  "  We  cannot  perceive  upon  what  ground  a  landlord  who, 
by  a  lease,  has  restricted  the  possession  and  use  of  his  tenant 
by  metes  and  bounds  to  a  part  of  a  larger  tract,  can  claim  that 


538  TITLE    BY    ORIGINAL    ACQUISITION. 

his  tenant's  possession  under  such  a  lease  extends  to  that  which, 
by  the  terms  of  the  lease,  the  tenant  has  no  right  to  possess." 
Plaintiff  only  occupied,  as  tenant  of  Mrs.  Mason,  that  portion  of 
the  land  which  was  in  the  inclosure,  or  was  a  part  of  the  Mason 
farm,  at  the  time  he  occupied  under  her,  and  any  part  of  the 
land  in  controversy  which  he  subsequenlly  inclosed  by  extending 
the  fence  around  the  Mason  farm  was  not  held  by  him  as  her 
tenant,  and  his  possession  thereof  was  adverse.  Mrs.  Mason's 
possession  was  without  color  of  title,  while  plaintiff's  color  of 
title  until  he  began  to  occupy  and  chiim  the  land  as  his  own  was 
unaccompanied  by  possession.  As  the  [)ossession  of  Mrs.  Mason 
was  without  color  of  title,  it  did  not  extend  beyond  the  boun- 
daries of  that  which  was  inclosed,  and  in  so  far  as  plaintiff 
claimed  under  her  and  the  Mason  heirs  his  possession  could 
extend  no  farther  than  to  the  small  pieces  of  land  inclosed  in  the 
field  belonging  to  the  Mason  estate.  The  payment  of  taxes  on 
the  land  by  plaintiff,  cutting  timber  thereon,  and  keeping  off 
trespassers,  did  not  constitute  possession,  but  were  merely  acts 
of  ownership,  tending  to  show  that  he  claimed  to  own  it.  For 
the  error  of  the  court  in  refusing  to  declare  the  law  as  prayed 
for  by  defendant  in  the  seventh  instruction,  the  judgment 
is  reversed,  and  the  cause  remanded.  All  of  this  division 
concur. 


Possession   Must  be  Open  and   N^otorious. 

Mission  of  Immaculate  Virgin  v.  Croniu,  143  N.  Y.  524;  38  N.  E.  964. 

Earl,  J.  This  is  an  action  of  ejectment,  commenced  April 
10,  1889,  to  recover  about  30  acres  of  land  known  as  lots  4  and 
5  of  the  Second  division  of  Rockaway  Beach.  The  land  extends 
along  the  Atlantic  Ocean  about  1,320  feet,  with  a  depth  back  from 
the  ocean  of  about  900  feet.  In  1809  there  was  a  partition  proceed- 
ing in  the  court  of  common  pleas  of  Queens  County  for  the  parti- 
tion among  alleged  owners  of  a  large  tract  of  laud  including  this 
land,  and  in  that  proceeding  this  land  was  set  off  to  Thomas 
Bannister,  in  the  right  of  his  wife  Rachel,  and  it  was  admitted 
upon  the  trial  that  both  parties  claimed  under  that  partition. 
The  plaintiff,  upon  the  trial,  gave  no  evidence  of  any  conveyance 
from  or  under  the  Bannisters,  and  gave  no  documentary  evi- 
dence connecting  its  title  with  the  Bannister  title.  The  only 
documentary  evidence  of  title  it  gave  was  as  follows ;  A 
deed  dated  January  28,  1869,  from  Benjamin  C.  Lockwood, 
Jr.,  and  his  mother,  to  Charles  Donohue,  and  a  deed  from 
Donohue  to  the  plaintiff,  dated  January  4, 1881.     There  was  no 


POSSESSION   MUST    BE    OPEN    AND    NOTORIOUS.  539 

proof  whatever  showing  any  title  in  the  grantors  of  Donohiie  from 
or  under  the  Bannisters,  and  so  there  is  no  claim  that  the  plain- 
tiff had  a  documentary  chain  of  title.  The  defendant  claims  the 
right  of  possession  of  the  land  as  lessee  from  a  grandson  of  the 
Bannisters,  and  the  complaint  alleges  that  he  entered  into  pos- 
session of  the  land  May  1,  1887,  and  he  has  ever  since  been  in 
possession  thereof.  The  plaintiff  claims  title  in  two  ways :  By 
adverse  possession,  and  failing  in  that,  by  proof  from  which  the 
court  could  presume  a  grant  from  or  under  the  Bannisters.  We 
think  both  claims  of  title  are  unfounded.  This  was  uninclosed, 
uncultivated,  unimproved,  and  unoccupied  land.  The  plaintiff 
and  its  predecessors  had  exercised  some  acts  of  apparent  owner- 
ship upon  the  land.  They  had  claimed  title  to  the  land,  sur- 
veyed it,  marked  the  boundaries  thereof  by  monuments,  from 
time  to  time  cut  trees  upon  it,  and  for  afew  years  paid  the  taxes 
thereon.  All  these  acts,  as  we  have  frequently  held,  fall  short 
of  showing  "  adverse  possession,"  as  defined  in  the  code  (sec- 
tion 272).  Wheeler  v.  Spinola,  54  N.  Y.  377;  Thompson  v. 
Burhans,  61  N.  Y.  52;  Miller  v.  Railwav  Co.,  71  N.  Y.  380; 
Thompson  v  Bnrhans,  79  N.  Y.  93;  Price  v.  Brown,  101  N.  Y. 
669;   5  N.  E.  434. 

The  plaintiff  cannot  claim  constructive  possession  of  the  land 
under  section  370  of  the  code,  because  no  part  of  the  tract  was 
improved,  and  the  trees  cut  therefrom  were  not  cut  for  use 
upon  the  tract,  but  for  use  upon  other  land  at  least 
two  miles  distant.  The  presumption  of  a  grant  of  the  land 
from  or  under  the  Bannisters  to  some  one  of  the  plaintiff's 
predecessors  rests  upon  an  equally  slender  foundation.  Here 
there  was  claim  of  title  for  many  years,  and  acts  upon  the  land 
consistent  with,  and,  indeed,  indicative  of  ownership.  But  such 
claim  and  acts,  in  the  absence  of  actual  or  constructive  posses- 
sion going  with  them  and  characterized  by  them,  have  never  of 
themselves  been  held  sufficient  to  authorize  the  presumption 
of  a  grant  from  the  true  owner.  The  plaintiff's  claim  of  title 
extends  back  less  than  twenty  years  prior  to  the  defendant's 
possession.  Its  deeds  are  all  modern,  and  any  title  derived 
from  the  Bannisters  must  have  been  modern,  as  they  were 
living  in  1809.  If  upon  such  facts  as  exist  here,  a  grant  could  be 
presumed,  it  would  be  easy  for  a  claimant  to  land  to  get  around 
the  careful  provisions  of  law  as  to  adverse  possession.  If  he 
failed  to  show  facts  sufficient  for  adverse  possession,  he  could 
yet  use  the  same  inadequate  facts  to  raise  a  presumption  of  a 
grant.  The  plaintiff's  counsel  places  reliance  upon  the  two 
cases  to  which  he  calls  our  attention,  and  which  wo  will  notice. 
In  Roe  V.  Strong,  119  N.  Y.  316;   23  N.  E.  743,  there  was  dis- 


540  TITLE    BY    ORIGINAL    ACQUISITION. 

pute  jvs  to  plaintiff's  title  to  upland  and  the  adjacent  land  under 
the  water  of  Setauket  Bay.  The  plaintiff  established  his  title 
to  the  upland,  bounded  by  high-water  mark  on  the  bay,  by. a 
chain  of  title  running  back  more  than  200  years,  an-d  he  sfcowed 
u  chain  of  title  to  the  land  below  high-water  mark  in  front  of 
his  ni)land  for  more  than  100  years,  running  back  to  a  deed  from 
Josei)h  Brewster  to  Andrew  Soaton,  dated  January  21,  1708; 
and  he  showed  acts  of  ownership  upon  the  land  covered  by  this 
deed,  running  back  so  far  as  the  memory  of  living  witnesses 
conld  go.  The  land  under  water  originally  belonging  to  the  town 
in  which  it  was  situated.  The  town  had,  nearly  200  years  before 
the  trial  of  that  action,  conveyed  away  the  adjacent  land  under 
water,  being  all  the  land  it  owned  on  Setauket  Bay,  except  the 
land  covered  by  the  Brewster  deed,  making  a  boundary  upon 
the  land  covered  by  that  deed.  Under  such  circumstances,  with 
others  not  here  mentioned,  this  court  held  that  a  deed  from  the 
town  to  Brewster,  or  some  one  under  whom  he  held,  should  be 
presumed,  and  the  presumption  was  made  in  favor  of  the  owner 
of  the  upland.  That  case  is  widely  different  from  this.  In 
McRoberts  v.  Bergman,  132  N.  Y.  73;  30  N.  E.  261,  the  land  in 
dispute  was  a  sand  beach  on  the  lower  bay  of  New  York,  adja- 
cent to  the  plaintiff's  upland,  and  the  beach  was  occupied  and 
used  in  connection  with  the  upland,  and  as  part  of  the  same  farm, 
the  beach  and  the  upland  constituting  a  single  lot.  The  plaintiff 
proved  a  chain  of  title  to  the  lot  running  back  for  much  more 
than  100  years.  Whatever  presumptions  were  indulged  in,  these 
furnish  no  precedent  for  this  case.  We  are  therefore  of  opinion 
that  the  plaintiff  failed  to  show  a  title  to  the  land  in  question 
sufficient  for  the  maintenance  of  this  action,  and  that  the  judg- 
ment should  be  reversed,  and  a  .new  trial  granted.  All  concur. 
Judgment  reversed. 


Possession  Must  Be  Exclusive. 

Smith  V.  Hitchcock,  38  Neb.  104;  56  N.  W.  791. 

Ragan,  C.  This  is  a  suit  in  ejectment  brought  on  November 
9,  1889,  in  the  district  court  of  Douglas  County  by  Mrs. 
Charity  Smith  against  Gilbert  M.  Hitchcock,  for  a  part  of  lot  1, 
in  Capitol  Addition  to  the  city  of  Omaha.  This  case  was  tried 
to  a  jury,  who,  under  instructions  of  the  court,  rendered  a  ver- 
dict for  Hitchcock,  and  Mrs.  Smith  brings  the  case  here  for 
review. 

Mrs.  Smith  has  no  paper  title  of  any  kind  for  any  part  of 
the  property.     Her  claim  is  based  wholly  on  possession.     The 


POSSESSION    MUST   BE   EXCLUSIVE.  541 

record  shows  that  on  and  prior  to  1869  this  lot,  No.  1,  being 
6()8  feet  in  length  north  and  south,  and  218  feet  in  width  east 
and  west,  was  owned  by  Mrs.  Annie  M.  Hitchcock.  She  died 
in  18f7,  and  the  lot  by  her  will  passed  to  her  husband,  the  late 
Senator  Hitchcock.  He  died  in  1881,  and  the  lot  descended  to 
his  son,  the  defendant  in  error.  About  1870,  by  permission  of 
Mrs.  Hitchcock  and  her  hushand,  Mrs.  Smith  moved  a  small 
cottage  she  owned  upon  this  lot  1,  near  the  east  line  thereof, 
and  lived  in  this  cottiige  at  that  place  until  1880.  Mrs.  Smith 
did  laundry  work  from  time  to  time  during  these  years  for  the 
Hitchcock  family  and  others.  She  also  planted  part  of  the 
ground  near  her  cottage  to  a  garden.  During  all  these  years 
the  Hitchcock  family,  consisting  of  Mrs.  Hitchcock,  her  husband, 
and  the  defendant  in  error,  and  others,  lived  upon  the  lot;  had 
on  it  their  barn,  horses,  cattle,  and  garden,  and  exercised  exclu- 
sive ownership  and  control  of  the  whole  lot.  During  all  this 
time  it  was  all  under  one  inclosnre,  built  and  maintained  by  the 
Hitchcocks;  and  that  part  occupied  by  Mrs.  Smith's  cottage 
was  in  no  other  manner,  than  by  the  cottage  itself,  separated 
or  severed  from  the  remainder  of  the  lot.  Mrs.  Smith,  during 
this  period,  by  the  permission  and  consent  of  Mrs.  Hitchcock 
and  her  husband,  and  as  a  kind  of  non-rent-paying  tenant  at 
will,  or  sufferance,  also  occupied  her  cottage  on  the  lot  She 
paid  no  taxes.  She  exercised  no  act  of  ownership  over  the 
lot  or  any  definite  portion  of  it.  Thus  matters  continued 
until  1880,  when  Mrs.  Smith,  by  the  permission  of  Senator 
Hitchcock,  who  then  owned  the  title  to  the  lot  as  devisee  of  his 
deceased  wife,  and  who  still  continued  to  occupy  the  lot  with 
his  family,  removed  her  cottage  to  a  point  nearer  the  west  line 
of  said  lot  and  some  250  feet  southwest  of  its  original  location. 
This  is  the  present  location  of  the  cottage.  The  usual  occupa- 
tion and  control  of  the  lot  by  the  Hitchcocks  continued  as 
before  this  removal,  and  Mrs.  Smith  continued  to  live  on  unin- 
terruptedly in  her  cottage.  The  senator  died  in  1881,  and  the 
defendant  in  error  became  the  owner  of  the  lot,  and  has  since 
continued  to  reside  upon  it  in  the  family  homestead.  In  1883 
defendant  in  error  erected  three  houses  on  a  portion  of  the  lot 
now  claimed  by  Mrs.  Smith,  which  houses  have  since  been 
occupied  by  tenants  of  the  defendant  in  error. 

In  1886  Douglas  street,  66  feet  wide,  was  extended  west 
across  the  entire  lot,  leaving  the  first  location  of  Mrs.  Smith's 
cottage  north  of  said  street.  After  the  extension  of  Douglas 
street,  the  defendant  in  error  built  fences  on  both  the  north  and 
south  lines  of  the  street,  thus  dividing  said  lot  into  two  separate 
inclosed  portions;  one  being  that  part  of  said  lot  lying  north  of 


542  TITLE    BY    OlilOlNAL    AC;QUISITI0N. 

said  Douglas  street,  and  on  which  Mrs.  Smith's  cottage  was  first 
located,  and  on  which  the  Hitchcock  honiestead  and  the  three 
tenant  houses  aforesaid  are  situate  ;  tlie  other  portion  being  all 
of  said  lot  1  south  of  Douglas  street,  and  on  which  portion  is 
now  Mrs.  Smith's  cottage.  No  claim  for  damages  was  made  by 
Mrs.  Smith  at  the  time  of  the  extension  of  this  Douglas  street, 
nor  did  she  assert  or  claim  any  ownership  over  the  land  taken  for 
such  extension,  though  now  she  claims  that  tiie  land  used  for 
such  extension  was  her  property.  She  asserted  no  claim  of 
ownership  or  title  to  any  of  the  property  at  the  time  of  the  build- 
ing of  the  tenement  houses  by  the  defendant  in  error. 

Mrs.  Smith,  to  recover  here,  must  prove  either  a  paper  title 
or  prove  ten  years'  open,  notorious,  exclusive,  and  adverse  pos- 
session. She  has  no  paper  title.  She  occupied,  by  livin^g  in 
her  cottage,  a  part  of  this  lot  openly  and  notoriously  for  ten 
years,  but  no  specific  or  definite  part  of  the  lot  other  than  the 
situs  of  the  cottage  itself.  Her  possession  of  the  lot  was  also 
concurrent  with  that  of  the  owner  of  the  legal  title.  It  was  a 
mixed  possession ;  not  an  exclusive  one.  The  defendant  in 
error,  the  holder  of  the  legal  title,  has  never  been  out  of  pos- 
session of  the  property  claimed  by  Mrs.  Smith,  and  this  nega- 
tives any  legal  presumption  that  her  possession  was  adverse  to 
his  title  or  possession.  Green  v.  Liter,  12  U.  S.  229;  Proprie- 
tors Kennebeck  Purchase  v.  Springer,  4  Mass.  415. 

But  as  a  matter  of  fact  or  law,  was  Mrs.  Smith's  possession 
of  this  property  adverse?  She  entered  by  permission  of  the 
owner,  and  in  1880,  by  his  permission,  moved  her  cottage  to 
another  part  of  the  same  premises,  not  involved  in  this  case. 
To  constitute  her  possession  or  occupancy  adverse,  she  must 
have  actually  held  and  occupied  the  property  as  her  own,  and  in 
opposition  and  hostility  to  the  concurrent  and  constructive  pos- 
session of  the  owner  of  the  legal  title.  French  V.  Pearce,  8  Conn. 
439;  Newell  Ejectment,  p.  697,  §  1.  There  is  no  evidence  in 
the  record  that  establishes,  or  tends  to  establish,  the  fact  that 
Mrs.  Smith's  possession  was  an  adverse  one  ;  nor  that  she  en- 
tered into  possession  of  these  premises  with  the  intention  of 
claiming  them  as  her  own,  or  that  she  ever  held  after  her  entry 
in  hostility  to  the  defendant  in  error.  Mrs.  Smith's  entry  on 
this  lot  was  by  permission  of  the  owner  of  the  legal  title,  and  her 
possession  thereafter  was  permissive  and  not  adverse;  nor  could 
it  become  so  until  such  time  as  she  began  to  occupy  under  a  claim 
of  right,  with  notice  of  such  claim  brought  home  to  the  owner. 
Harvey  v.  Tyler,  2  Wall.  U.  S.  328;  Allen  v.  Allen,  58  Wis. 
202-209;  Perkins  v.  Nugent,  45  Mich.  156;  Davenport  v. 
Sebring,    52  la.    364  ;  Pease  v.  Lawson,  33  Mo.  35  ;  Smith  v. 


POSSKSSION    MUST    BE    HOSTILE    AND    ADVERSE.  543 

Stevens,  82  111.554;  Angell  Limitations,  §  355.  The  court  did 
not  err  in  instructing  the  jury  to  find  for  the  defendant. 

Complaint  is  made  because  of  the  refusal  of  the  trial  court 
to  pel  niit  witnesess  of  the  plaintiff  in  error  to  answer  certain 
questions  propounded  to  them  on  the  trial.  No  tender  or  offer 
of  the  evidence  sought  to  be  elicited  by  these  questions  was 
made,  and  these  assignments  cannot  now  be  considered.  Mas- 
ters V.  Marsh,  19  Neb.  458;  Connelly  v.  Edgerton,  22  Neb.  82  ; 
Yates  V.  Kinney,  25  Neb.  120;  Burns  v.  City  of  Fairmont,  28 
Neb.  866. 

Another  error  assigned  is  the  overruling  of  the  motion  for 
a  new  trial  on  the  ground  of  newly  discovered  evidence.  To 
entitle  the  plaintiff  to  a  new  trial  on  account  of  newly  discov- 
ered evidence,  it  is  not  enough  that  the  evidence  is  material. 
It  must  further  appear  that  the  applicant  for  a  new  trial  could 
not,  by  the  exercise  of  reasonable  diligence,  have  discovered 
and  produced  such  evidence  at  the  trial.  Fitzgerald  v.  Brandt, 
36  Neb.  683.  The  proof  fails  to  disclose  such  diligence  on  the 
part  of  the  plaintiff  in  error  as  entitled  her  to  a  new  trial  on  the 
ground  of  newly  discovered  evidence,  but  if  it  did,  and  the  evi- 
dence now  claimed  to  be  newly  discovered  was  put  into  the 
record,  it  would  not  change  the  result.  A  new  trial  should  not 
be  granted  on  account  of  newly  discovered  evidence  when  such 
evidence  if  admitted  could  not  change  the  result  of  the  first 
trial.  Kerser  v.  Decker,  29  Neb.  92.  The  judgment  of  the 
court  is  affirmed. 


Possession  Must  be  Hostile  and  Adverse. 

Smeberg  v.  Cunningham,  96  Mich.  378;  56  N.  W  73. 

Opinion  by  Grant,  J. 

Plaintiff  is  the  owner  of  the  record  title  to  the  land  in  controversy. 
Defendant  claims  title  by  adverse  possession.  The  land  is  de- 
scribed in  the  declaration  as  "  that  portion  of  Palms  street  lying 
north  of  the  center  line  of  said  street,  and  south  of  the 
north  line  of  said  street,  and  abutting  on  lots  15  and  16  of 
block  1  of  White's  addition  to  the  city  of  Marquette."  From 
1871  to  1880  the  Champion  Iron  Company  was  owner  of  the 
governmental  subdivision  which  included  this  land.  The  land  was 
mainly  unoccupied,  but  at  some  time  a  small  house  had  been 
built  upon  it,  but  when  or  by  whom  does  not  appear.  The  own- 
ers of  the  land  do  not  appear  to  have  paid  much  attention  to  it 
for  many  years,  though  Mr.  Peter  White,  of  Marquette,  had 
general  charge  of  it.     A  fence  had  been  built,  inclosing  some  of 


544  TITLE    BY    ORIGINAL    ACQUISITION. 

the  land  around  the  house.  Tho  land  was  platted  in  1888.  The 
house  is  on  Palms  street,  and  the  land  which  defendant  claims  is 
directly  in  front  of  plaintiff's  lots,  on  which  he  erected  a  house. 
One  of  his  lots  fronts  on  Palms  street,  and  the  other  is  on  the 
corner  of  Palms  and  Champion  streets.  Wiiile  he  was  building 
his  house  and  improving  his  lots,  he  used  the  street  covering  the 
land  in  controversy,  and  built  with  reference  to  it.  During  this 
time,  defendant  saw  what  he  was  doing,  but  made  no  objection 
or  claim  of  ownership  to  him  until  after  he  had  lived  upon  his 
lots  six  months,  when  she  built  a  fence  along  the  front  of  his 
lots.  Poor  people  appear  to  have  moved  into  this  house 
at  various  times,  and  to  have  occui)ied  it  without  paying 
rent  or  claiming  any  right  either  to  the  house  or  to  the  land. 
One  Hudson,  a  witness  for  the  defendant,  testified  that  he 
occupied  the  piemises  with  his  mother  in  1873,  and  part  of 
1874;  that  his  mother  was  poor,  the  house  was  empty,  and  he 
knew  of  no  authority  given  them  to  occupy  it;  and  that  when 
his  mother  moved  out  the  defendant  moved  in.  Defendant 
occupied  it  until  some  time  in  1888  or  1889,  when  she  removed 
to  another  part  of  the  city,  but  her  daughter  testifies  that  she 
left  some  goods  in  the  house,  and  that  she  had  boarders  who 
slept  there.  The  character  of  the  possession  will  appear  from 
defendant's  own  testimony:  Question.  State  how  you  came  to 
go  and  live  there.  Answer.  Well,  a  man  by  the  name  of  Mr. 
Neff  lived  in  the  house,  and  my  man  worked  there.  We  lived 
by  the  furnace,  and  he  came  into  the  house,  and  said  that 
it  was  a  good  place  for  a  poor  family,  and  that  it  would  be  near 
his  work,  and  he  said  that  he  lived  in  there  quite  a  good  many 
years,  and  he  said  that  he  never  paid  any  rent,  nor  no  rent  was 
ever  asked  of  him,  he  says  ;  and  ho  said  that  he  had  poor  health, 
and  couldn't  do  any  work.  He  worked  on  the  docks,  *  That 
I  ain't  able  to  do,'  he  says;  '  I  am  going  out  West  to  get  a  bit 
of  land.'  Well,  then  I  saw  my  husband  and  asked  him  whether 
I  would  go.  I  says,  '  I  would  like  to  look  at  it;'  and  he  said  it 
was  pretty  good,  and  '  you  will  never  have  to  pay  any  rent.'  So 
I  went  and  moved  in  there,  to  see  how  we  would  get  along  there, 
and  I  told  Mrs.  Swineford  I  would  live  there,  and  make  it  my 
home,  and  the  rest  of  my  family,  and  keep  it  ;  when  nobody 
was  looking  for  rent,  I  would  keep  it."  On  cross-examination 
she  testified  that,  some  five  or  six  years  after  she  went  into  the 
house,  she  had  a  conversation  with  a  Mr.  Ely,  in  which  he  told  her 
that  it  was  his  brother  and  Mr.  Wells  who  owned  the  house,  and 
that  "  the  reason  she  kept  it  was  because  they  were  dead."  Her 
daughter  was  asked  what  claim  she  heard  her  mother  make,  and 
she  replied:   '♦  Quite  a  few  times,  when  I  was  going  to  visit  her, 


POSSESSION   MUST   BE    HOSTILE    AND    ADVERSE.  545 

she  always  suid  she  was  going  (o  live  there,  because  my  father, 
he  wanted  to  go  out  West,  and  she  wouldn't  go.  It  was  a  wild 
place,  and  she  had  a  place  of  her  own.  Question.  Did  she  give 
any  reason  for  her  claim?  Answer.  She  thought  nobody  had 
ever  bothered  her,  and  never  had  come  to  look  for  rent,  and 
bother  with  her  place,  and  she  thought  she  might  as  well  stay 
there."  On  cross-examination  this  witness  said  that  if  her 
mother  had  had  to  pay  rent  she  would  not  have  lived  there. 
Meanwhile,  the  owners  of  the  land  paid  the  taxes,  and  the  prop- 
erty was  sold  and  mortgaged,  and  the  owners  of  the  record  title 
exercised  the  usual  acts  of  ownership  over  land  situated  as 
this  was.  Defendant  was  poor,  and  during  a  large  portion  of  the 
time  of  her  ()ccu[)iincy  of  this  house  was  the  recipient  of  aid  from 
the  poor  fund  of  the  county.  Mr.  Mavnard,  for  many  years  one 
of  the  superintendents  of  the  poor,  testified  that  in  1885  she 
asked  him  to  pay  the  rent  of  the  house,  saying  that  she  was  not 
able  to  do  it.  Peter  White  testified  that  in  1880,  after  the  land 
was  sold  by  the  Champion  Iron  Company,  he  had  the  entire 
charge  of  the  pro[)erty,  [)aid  the  taxes,  exercised  other  acts  of 
ownership  over  it,  and  in  that  year  asked  the  defendant  to  pay 
rent,  and  she  replied  she  was  too  poor  to  pay  it.  The?e  state- 
ments were  denied  by  her,  and,  so  far  as  they  are  conceined,  it 
was,  of  course,  a  question  for  the  jury.  The  following  special 
questions  were  submitted  to  the  jury  at  the  request  of  defendant's 
counsel,  and  respectively  answered  by  the  jury,  as  follows: 
•'Question.  Did  the  defendant  occupy  the  premises  in  dispute, 
either  by  herself  or  her  tenants  or  boarders,  or  both,  for  a 
period  of  fifteen  years,  continuously,  prior  to  the  commence- 
ment of  this  suit,  without  recognizing  any  one  as  her  landlord? 
Answer.  Yes.  Q.  Did  the  defendant  ever  pay  rent  to  anyone 
for  the  premises  in  dispute.     A.  No." 

1.  The  court,  as  requested,  should  have  instructed  the  jury  that 
the  defendant  had  failed  to  establish  title  by  adverse  posses- 
sion. She  did  not  enter  under  any  claim  or  color  of  right,  nor 
in  the  belief  that  she  had  any  right.  Her  entry  and  possession 
were  the  same  as  those  of  former  occupants  who  claimed  no  right 
to  the  property.  She  did  not  intend  to  retain  possession,  ac- 
cording to  her  own  evidence,  any  longer  than  she  could  do  so 
without  the  payment  of  rent.  This  was  a  recognition  of  title 
in  some  one  else,  and  was  conclusive  evidence  that  her  entry  and 
possession  were  subject  to  that  title.  The  answers  to  the  special 
questions  do  not,  of  themselves,  establish  a  case  of  adverse  pos- 
session necessary  to  establish  title.  Mere  possession  is  not  suf- 
ficient. It  must  not  only  be  actual,  continuous,  visible  and 
notorious,  but  it  must  be  hostile  to  the  title  of  the  real  owner. 

35 


546  TITLE    BY    OIIIOINAL    ACQUISITION. 

An  entry  with  the  intent  to  remain  in  possession  until  the  real 
owner  ciuinis  it,  or  demandn  rent,  is  not  liostile.  These  ques- 
tions clearly  gave  the  jury  to  understand  that  such  possession 
was  sufficient  to  estal)li.sh  title  in  defendant.  Their  verdict  can  be 
explained  upon  no  other  theory.  Her  actual  residence  upon  the 
property  was  not  15  years.  Including  the  time  during  which, 
according  to  her  daughter's  testimony,  she  had  some  goods  in 
the  house,  her  possession  was  barely  15  years.  The  statute  of 
limitations,  in  such  cases,  begins  to  run  only  from  some  act  of 
possession  so  open,  notorious  and  hostile  that  it  constitntes,  in 
law,  a  notice  to  the  real  owner.  The  entry,  under  the  circum- 
stances of  this  case,  was  not  such  an  act.  No  subsequent  act  or 
assertion  upon  her  part,  even  if  sufficient,  is  shown  to  have  oc- 
curred 15  years  prior  to  the  commencement  of  the  suit.  It  was 
said  by  Mr.  Justice  Campbell  in  Campau  v.  Lafferty,  43  Mich. 
431 ;  5  N.  W.  Rep.  648,  "  that  a  holding  cannot  be  adverse  if 
the  holder  does  not  believe  in  his  title."  It  was  also  said  in  that 
case  that  "  a  possession  may  be  maintained  long  enough  by  an 
undisturbed  and  defiant  trespasser  to  bar  an  ejectment."  The 
defendant  in  this  case  did  not  believe  \n  her  title,  nor  was  she  a 
defiant  trespasser. 

2.  It  is  contended  that  the  plaintiff  has  no  such  title  in  this 
land  as  would  sustain  an  action  of  ejectment.  The  plaintiff  is 
the  owner  of  the  fee  of  the  land  to  the  center  of  the  street,  and 
has  the  right  to  its  use,  subject  to  the  public  easement.  He  may 
set  out  shade  trees,  construct  a  sidewalk  and  exercise  other  acts 
of  ownership  and  possession  which  do  not  interfere  with  the  pub- 
lic use.  He  has  a  valid  and  subsisting  interest,  under  How.  St., 
§  7790.  The  rights  of  the  public  are  not  here  in  issue,  and  the 
question  whether  the  municipality  could  maintain  an  action  of 
ejectment  is  not  involved.  Plaintiff  was  ousted  of  his  posses- 
sion and  use  by  the  act  of  the  defendant.  Under  such  circum- 
stances, ejectment  is  the  poper  remedy.  Judgment  reversed, 
and  new  trial  ordered.     The  other  justices  concurred. 


Adverse    Possession    by    Trustee  —  Tenancy    by  the   Curtesy. 

Meacham  v.  Buntiug,  156  111.  586;  41  N.  E.  175. 

Wilkin,  J.  Urban  D.  Meacham  and  Prudence  Geddis 
were  married  in  1836.  They  removed  from  Wisconsin  to 
Freeport,  this  State,  in  1852,  and  there  lived  as  husband 
and  wife  until  1862.  One  son,  born  of  this  marriage  in  1836, 
is  still  living.  On  the  29th  of  November,  1856,  the  husband 
purchased  of  one  Siudlinger  lots  6   and  7  in  block  5  in  Wright 


ADVERSE   POSSESSION    BY   TRUSTEE.  547 

and  Piiriuton's  addition  to  tlic  city  of  Freeport,  the  deed  con- 
veying tlie  same  to  him,  "  in  trust  for  the  use  and  benofit  of 
Prudence  Meacham,"  then  his  wife.  Both  went  into  possession 
of  the  property  in  1857,  and  occupied  it  as  a  home  until  18(52, 
and  the  husband  continued  in  possession  until  his  death,  in  Jan- 
uary, 18i>2.  In  18(54  he  obtained  a  decree  of  divorce  in  the 
circuit  court  of  Ogle  County  from  his  wife,  and  by  a  second 
mariinge  became  the  father  of  a  daughter,  Jessie,  and  a  son, 
James.  The  mother  of  these  children  resided  with  the  father  on 
the  premises  until  her  denth,  and  the  children  continued  to  live 
with  him  until  he  died.  By  a  general  devise  in  his  last  will  their 
father  gave  these  children  the  title  he  then  held,  if  any,  to  the 
lots.  The  former  wife  also  remarried,  her  present  name  being 
Prudence  Bunting.  In  1893  she  brought  action  of  ejectment  in 
the  court  below,  claiming  said  property  as  owner  in  fee,  and 
making  Jessie  and  James  Meacham,  with  others,  defendants. 
Issue  being  joined,  and  atrial  by  jury,  the  court  directed  a  ver- 
dict for  the  plaintiff,  and  entered  judgment  accordingly.  The 
defendants  appeal. 

By  the  pleadings  the  issue  whether  plaintiff's  right  of  action 
was  l)arred  by  the  20-years  statute  of  limitations  is  j)roperly 
raised,  and  is  the  controlling  question  in  the  case.  The  parties 
agree  that  by  the  terms  of  the  deed  from  Sindlinger  to  Urban 
D.  Moacham  he  became  the  naked  trustee  of  his  wife.  Prudence, 
and  that  the  legal  title  to  the  property  conveyed  would  therefore, 
under  the  general  rule,  vest  in  her  by  force  of  the  statute  of 
uses.  It  is  also  conceded  that,  inasmuch  as  she  waa  not  sui  juris 
under  the  law  in  force  at  the  time  the  deed  was  executed,  the 
title  did  not  immediately  vest  in  her,  but  was  left  in  her  hus- 
band for  her  use.  But  counsel  for  appellants  say  the  statute 
took  effect,  and  she  became  seised  of  the  estate  in  her  own  right, 
upon  the  dissolution  of  the  marriage,  in  1864,  and  from  that 
time  the  possession  of  the  husband  was  adverse;  therefore  the 
statute  then  run  against  her.  On  behalf  of  appellee  it  is  con- 
tended that,  even  if  the  legal  title  did  vest  in  her  at  the  date  of 
the  decree  of  divorce,  still,  by  reason  of  his  marriage,  and  the 
prior  birth  of  issue,  her  husband  took  an  estate  in  the  property 
upon  the  execution  and  delivery  of  the  deed  from  Sindlinger,  as 
tenant  by  the  curtesy  initiate,  and  hence  his  right  of  action  did 
not  accrue  until  his  death.  To  the  first  of  these  positions  oppos- 
ing counsel  insist  that  it  is  held  the  title  does  not,  in  such  cases, 
vest  in  the  cestui  que  trust  immediately  for  the  very  purpose  of 
excluding  all  marital  rights  of  the  husband,  and  therefore  Urban 
D.  Meacham  never  became  tenant  by  the  curtesy ;  and,  even  if 
he  did,  the  decree  of  divorce  destroyed  that  as  well  as  all  other 


548  TITLE    BY    ORIGINAL    ACQUISITION. 

raaritjil  rights  in  him.     Appellee's  counsel  also  deny  that  Urban 
D.  Meacham's  possession  was  at  any  time  adverse  to  her. 

First.  Did  Urban  D.  Meacham  have  a  life  estate  in  the  prem- 
ises [)rior  to  the  divorce?  ]f  the  statute  of  uses  had  operated 
at  the  time  of  the  conveyance  to  vest  the  estate  in  the  cestui  que 
trusty  the  wife,  there  being  issue  tlien  born,  the  husband  would 
have  become  tenant  by  the  cuitesy  initiate,  precisely  as  though 
the  deed  from  Sindlinger  had  been  directly  to  her.  But,  being 
a  married  woman,  the  statute  of  uses  did  not  execute  the  trust, 
and  the  legal  title  remained  in  her  husband,  the  trustee,  for  her 
use.  Dean  v.  Long,  122  111.  447;  14  N.  E.  34;  citing  Perry 
Trusts,  §  310.  This  author  says:  "If  an  estate  be  given  to 
trustees  upon  a  trust  for  a  married  woman  for  her  sole  and 
separate  use,  *  *  *  the  legal  estate  will  vest  in  the  trustees, 
and  the  statute  will  not  execute  it  in  the  cestui  que  ti^ust.  In  all 
these  cases  the  court  will  give  this  construction  to  the  gift  if 
possible,  for,  if  the  statute  should  execute  the  estate  in 
the  married  woman,  certain  rights  would  arise  to  the  hus- 
band which  might  defeat  the  intention  of  the  donor.  These 
are  not  the  only  words  necessary  to  prevent  the  estate 
from  vesting.  Any  words  that  show  an  intent  to  create  an 
estate  or  a  trust  for  the  sole  and  separate  use  of  a  married 
woman  will  have  the  same  effect."  Other  authorities  are 
to  the  same  effect,  and  it  seems  to  be  the  settled  rule 
that,  where  the  trust  is  expressly  "for  the  separate  use" 
or  *'  for  the  sole  use  and  benefit"  of  a  married  woman, 
courts  will  not  allow  the  statute  to  execute  it  in  her,  because  the 
eflfect  might  be  to  let  in  marital  rights  of  her  husband,  and 
thereby  deprive  her  of  the  sole  and  separate  use,  contrary  to  the 
intention  of  the  party  creating  the  trust.  Nevertheless,  it  is  well 
understood  that  a  husband's  right  to  an  estate  by  the  curtesy 
may  attach  to  an  equitable  as  well  as  legal  estate  held  by  his, 
wife  during  coverture,  and  there  can  be  no  doubt  that  he  may 
have  such  right  in  real  estate  conveyed  to  another  for  her  use. 
Whether  she  holds  the  property  by  a  direct  conveyance,  or  as 
the  cestui  que  trust  therein,  if  it  appears  that  the  grantor  in- 
tended to  exclude  the  husband  from  the  curtesy  courts  will  give 
effect  to  that  intention.  Pool  v.  Blakie,  53  111.  495  ;  Monroe  v. 
Van  Meter,  100  III.  347.  But  the  husband  can  be  deprived  of 
his  marital  rights  only  when  the  intention  to  do  so  clearly  ap- 
pears. Carter  v.  Dale,  3  Lea,  710;  Gushing  v.  Blake,  30  N.  J. 
Eq.  689;  Hill  Trusts,  405;  Steadman  v.  Palling,  3  Atk.  423; 
Tyler  Gov.  There  is  nothing  in  the  language  of  the  deed  in  ques- 
tion to  indicate  a  pur|)ose  on  the  part  of  the  grantor  to  convey 
the  property  for  the  sole  and  separate  use  of  Prudence  Meacham. 


ADVERSE   POSSESSION    BY    TRUSTEE.  549 

In  fact,  the  fair  inference  is  that  Siodlinger,  the  grantor,  had  no 
purpose  whatever  in  conveyingthe  lots  in  trust  except  to  carry  out 
the  wish  of  Mr.  Mcacham,  who  purchased  them.  That  he  (the 
husband  )  intended  by  the  words,  "  in  trust  for  the*  use  and  bene- 
fit of  Prudence  Mcacham,"  to  exclude  himself  from  all  right  in 
the  property  by  the  curtesy  cannot  be  presumed,  and  his  conduct 
after  the  divorce  was  wholly  inconsistent  with  any  such  inten- 
tion. We  think  the  authorities  fully  sustain  the  position  that  he, 
at  the  date  of  the  Sindlinger  deed,  became  tenant  by  the  curtesy 
initiate  in  the  premises. 

Was  that  estate  destroyed  by  the  decree  of  divorce?  While 
the  evidence  does  not  show  the  grounds  upon  which  it  was 
obtained,  it  does  appear  that  it  was  upon  the  application  of  the 
husband,  and  must  therefore  have  been  rendered  not  for  his  fault, 
but  that  of  the  defendant,  his  wife.  While  many  cases  hold  '*  a 
divorce  a  vincula  destroys  the  husband's  right  to  curtesy,"  they 
speak  of  such  a  divorce  as  at  common  law,  which  rendered  the 
marriage  void  ab  initio.  Although  the  only  divorce  known  to 
our  law  is  "  a  viiicula^''  it  may,  under  the  statute,  be  granted  for 
causes  arising  after  the  marriage;  and  the  decree  does  not  avoid 
it  from  the  beginning.  The  marriage  is  legal  until  dissolved, 
and  we  think  rights  acquired  during  its  legal  existence  cannot  be 
destroyed  by  its  dissolution  unless  the  statute  so  expressly  pro- 
vides. This  view  is  sustained  by  the  case  of  Wait  v.  Wait,  4  N.  Y. 
95.  The  New  York  statute  said,  "  In  case  of  divorce  dissolving 
the  marriage  contract  for  the  misconduct  of  the  wife,  she  shall 
not  be  endowed."  The  court  of  appeals  held,  where  a  divorce 
was  granted  for  any  other  cause  than  the  misconduct  of  the  wife, 
she  was  entitled  to  dower,  and  said:  *'  A  divorce  at  common 
law  avoided  the  marriage  ab  initio.  It  was  equivalent  to  a  sen- 
tence of  nullity  under  our  statute.  It  placed  the  parties  in  the 
same  relation  to  each  other  as  though  there  had  been  no  mar- 
riage. *  *  *  Until  our  statute,  there  was  no  such  thing  as 
a  divorce  which  recognized  and  admitted  the  validity  of  the 
marriage,  and  avoided  it  for  causes  happening  afterwards.  Such 
a  divorce  is  alone  the  creature  of  the  statute.  The  principles 
applicable  to  common-law  divorce  cannot  be  made  applicable  to 
a  divorce  which  admits  the  validity  of  the  marriage  and  the 
rights  and  obligations  resulting  from  it.  The  effect  of  such  a 
divorce  must  bo  determined  entirely  by  the  provisions  of  law 
under  whose  authority  it  is  granted.  The  common-law  divorce 
avoided  the  marriage  and  all  rights  and  obligations  resulting 
from  it.  The  statutory  divorce  is  limited  in  its  operation,  and 
only  affects  the  rights  and  obligations  of  the  parties  to  the  ex- 
tent declared   by  statute.     The  marriage  being  valid,  the  rights 


550  TITLE    BY    ORIGINAL    ACQUISITION. 

it  conferred  and  obligations  it  imposed  continue  where  the  legis- 
lature has  failed  to  interfere.  In  determining  the  question 
before  us,  therefore,  we  are  to  ascertain  the  will  of  the  legitdature, 
the  intent  and  effect  of  the  statute  under  which  the  divorce  in  ques- 
tion was  granted.  When  a  divorce  is  under  the  statute  the  oper- 
ation of  the  decree  is  wholly  prospective.  *  *  *  If  it  was 
the  intention  of  the  legislature  that,  in  case  of  a  divorce  under 
the  statute,  the  wife  should  in  no  event  be  entitled  to  dower, 
why  not  make  the  provision  general  instead  of  depriving  the 
wife  of  dower  only  in  case  of  her  being  convicted  of  adultery? 
^  Expressio  unius  exchisio  alleiius.'  "  When  the  decree  in 
question  was  obtained  our  statute  provided:  "If  any  woman 
shall  be  divorced  from  her  husband  for  the  fault  or  misconduct 
of  such  husband,  except  where  the  marriage  was  void  from  the 
beginning,  she  shall  not  thereby  lose  her  dower,  nor  the  benefit 
of  such  jointure ;  but  if  such  divorce  be  for  her  fault  or  miscon- 
duct she  shall  forfeit  the  same  ;  and  when  a  divorce  is  ol)tained 
for  the  fault  and  misconduct  of  the  husband  he  shall  lose  his 
right  to  be  tenant  by  the  curtesy  in  the  wife's  lands,  and  also 
any  estate  granted  therein  by  the  laws  of  this  State."  Chancery 
Code  (Scates  Treat.  &  Blackwell's  Ed.)  St.  1858,  No.  7,  §  12, 
tit.  "Dower."  Certainly  it  did  not  take  away  the  husband's 
right  to  be  tenant  by  the  curtesy  in  his  divorced  wife's  lands, 
but  clearly  shows  an  intention  by  the  legislature  to  secure  him 
in  that  right,  if  the  divorce  was  obtained  for  cause,  other  than 
his  fault  or  misconduct.  As  said  in  Wait  v.  Wait,  supra,  if 
the  legislature  intended  that,  in  case  of  divorce  under  the  stat- 
ute, the  husband  should  in  no  event  be  entitled  to  tenancy  by 
the  curtesy,  why  not  make  the  provision  general,  instead  of 
only  in  case  of  the  divorce  being  obtained  for  his  fault?  The 
husband's  tenancy  by  the  curtesy  initiate  was  not  defeated  by 
the  decree  of  divorce  in  his  favor,  but  terminated  only  upon 
his  death;  and  therefore  the  appellee's  right  of  action  did  not 
accrue  until  he  died  in  1863.  The  possession  of  land  by  a  tenant 
for  life  cannot  be  adverse  to  the  remainder-man  or  reversioner. 
Mettler  v.  Miller,  129  111.  630  ;  22  N.  E.  529,  and  cases  cited. 

We  are  also  of  opinion  that,  without  reference  to  his  tenancy 
by  the  curtesy,  the  possession  of  Url)an  D.  Meacham  was  at  no 
time  adverse  to  appellee,  within  the  meaning  of  the  statute  of 
limitations.  He  entered  under  the  sindlinger  deed,  and  prima 
facie  continued  to  hold  possession  under  it.  If  the  defendants 
below,  claiming  under  him,  denied  that  fact,  the  burden  was 
upon  them  to  prove  it;  and  this  they  wholly  failed  to  do. 
Adverse  possession,  sufficient  to  defeat  the  legal  title,  must  be 
hostile  in  its  inception,  and  continue  uninterruptedly  for  twenty 


POSSESSION  NOT  ADVERSE  TO  MORTGAGEE  UNTIL  DEFAULT.       551 

years.  It  must  be  acquired  and  retained  under  claim  of  title 
inconsistent  with  that  of  the  true  owner.  Turney  v.  Chamber- 
lain, 15  111.  271.  See,  also,  Morse  v.  Seibold,  147  III.  318 ;  35 
N.  E.  369,  and  cases  cited.  He  entered  as  a  trustee  under  the 
Sindlinger  deed,  and  he  could  only  afterwards  claim  to  hold 
adversely  to  that  title  by  surrendering  the  possession,  and  retak- 
ing it.  O'Halloran  v.  Fitzgerald,  71  111.  53;  Reynolds  v.  Sum- 
ner, 126  111.  58  ;  18  N.  E.  334.  The  entry  was  with  appellee's 
consent,  and  therefore  not  adverse.  Timmons  v.  Kidwell,  138 
111.  12;  27  N.  E.  756.  The  possession  was  consistent  with  the 
title  of  the  real  owner,  and  "  nothing  but  a  clear,  unequivocal, 
and  notorious  disclaimer  and  disavowal  of  the  title  of  such 
owner  would  render  the  possession,  however  long  continued, 
adverse."  Rigg  v.  Cook,  4  Gilman,  351,  followed  by  Trans- 
portation Co.  V.  Gill,  111  111.  541.  No  other  verdict  than  that 
which  the  jury  was  instructed  to  return  could  have  been  properly 
rendered  in  this  case.  The  judgment  of  the  circuit  court  will  be 
affirmed.     Affirmed. 


Possession    not    Adverse     to    Mortgagee,    Until    Default    in 

Mortgage. 

Norris  v.  He,  152  111.  190;  38  N.  E.  762. 

Magruder,  J.  This  is  an  action  of  ejectment,  brought  by 
appellant  against  appellee,  for  the  recovery  of  the  N.  W.  -^,  sec- 
tion 24,  township  1  S.,  range  9  E.  of  the  third  P.  M.  in  Wayne 
County.  The  case  was  tried,  by  agreement,  before  the  court 
without  a  jury.  The  finding  and  judgment  were  for  the  defend- 
ant, and  the  present  appeal  is  prosecuted  from  such  judg- 
ment. 

The  land  involved  was  originally  a  part  of  the  swamp  lands 
granted  to  the  State  bv  act  of  Congress,  approved  September 
28,  1850  (2  Starr  &  C."  Ann.  St.,  p.  2379),  and  granted  by  the 
States  to  the  several  counties  in  which  they  were  located  by  act 
of  the  Icgishituie  approved  June  22,  1852  (1  Adams  &  D.  Real 
Estate  Stat.  &  Dec.  111.,  p.  898).  It  is  conceded  that  the  county 
of  Wayne  had  good  title  to  the  swamp  lands  therein  under  said 
acts,  and  both  parties  deraign  their  title  from  said  county.  Ap- 
pellee claims  title  through  a  foreclosure  sale  in  a  proceeding  to 
foreclose  a  mortgage  executed  by  said  county,  and  conveying 
certain  swamp  lands,  including  the  quarter  section  above  men- 
tionetl.  Appellant  claims  title  through  a  deed  of  the  same 
swamp  lands,  executed  by  said  county  after  the  execution  of  said 
mortgage,  and  alter  the  filing  of  the  bill  to  foreclose  the  same 


552  TITLE    BY    ORIGINAL    ACQUISITION. 

On  April  20,  1859,  the  county  of  Wayne  executed  to  Isaac  Sey- 
mour, trustee,  of  New  York,  u  mortgage  upon  103,818  acres  of 
its  swamp  lands  (loss  3,800  acres  pre-empted),  to  secure  the 
payment  of  construction  bonds  of  the  Mt.  Vernon  Railroad 
Company  to  the  amount  of  $800,000,  and  at  the  same  time 
also  executed  to  said  Seymour,  as  trustee,  a  trust  deed  convey- 
ing said  lands  to  him  upon  certain  trusts  relating  to  the  con- 
struction of  said  road  and  the  raising  of  funds  therefor,  and 
containing  recitals  similar  to  those  in  the  mortgage,  and  equally 
in  the  interests  of  the  holders  of  said  bonds.  Said  mortgage 
and  trust  deed  were  recorded  in  the  recorder's  office  of  Wayne 
County  on  May  3,  1859.  On  the  same  day  the  Mt.  Vernon 
Railroad  Company  executed  a  mortgage  upon  its  contemplated 
railroad,  its  appurtenances,  franchises,  and  all  its  property  and 
effects,  present  and  prospective,  to  the  said  Seymour,  as  trustee, 
for  the  purpose  of  securing  said  bonds  and  for  the  benefit  of 
the  holders  thereof.  A  fuller  description  of  these  instruments, 
and  of  the  proceedings  leading  up  to  their  execution,  will  be 
found  in  Kenicott  v.  Supervisors,  16  Wall.  452,  and  Scates  v. 
King,  110  III.  456.  On  March  7,  1865,  John  W.  Kenicott  and 
others,  holders  of  some  of  said  bonds,  filed  a  bill  in  the 
circuit  court  of  the  United  States  for  the  southern  district 
of  Illinois  against  the  Mt.  Vernon  Railroad  Company  and  the 
county  of  Wayne  to  foreclose  said  mortgages  and  trust  deed, 
alleging,  among  other  things,  the  death  of  Seymour,  the  trustee, 
and  that  by  reason  thereof  the  trust  had  become  incapable  of 
execution  except  by  the  aid  of  the  courts,  and  praying  for  an 
accounting  and  for  such  other  relief  as  might  be  just  and  equit- 
able. On  March  29,  1866,  the  complainants  in  said  foreclosure 
suit  filed  an  amended  bill,  setting  up  more  speciiically  the  facts 
in  relation  to  the  organization  of  the  company  and  praying  that 
a  trustee  be  appointed  in  the  place  of  Seymour  to  execute  the 
trust  under  the  direction  of  the  court,  or  for  a  decree  fore- 
closing said  mortgages  or  deed  of  trust.  On  October  1,  1866, 
complainants  filed  a  second  amended  bill  setting  forth  said  mort- 
gages, and  provisions  of  the  charter  of  said  railroad  company, 
and  the  action  of  the  county  court  in  calling  and  holding  an 
election  to  take  the  vote  of  the  people  upon  the  question  of  aid- 
ing in  the  construction  of  a  railroad  by  the  appropriation  of  the 
swamp  land  to  that  purpose,  and  in  ordering  the  execution  of 
said  mortgages,  and  praying  for  a  foreclosure  of  said  mortgages 
and  trust  deed.  Summons,  issued  upon  the  original  bill,  was 
served  upon  the  county  on  March  11,  1865.  The  railroad  com- 
pany was  also  served,  and  default  was  entered  against  it  on  June 
1,  1868,  and  a  decree  of  sale  entered  against  it  on  June  18,  1868, 


POSSESSION  KOT  ADVICUSE  TO  MOUTGAGEE  UNTIL  DEFAULT.       553 

under  which  tho  comjianj's  road,  franchises,  and  effects  were 
sold  by  the  master  to  the  coin|)any,  and  subseqnently  conveyed 
to  it  by  a  master's  deed.  Scales  v.  Kino;,  supra.  On  January 
17,  1870,  to  which  date  the  cause  had  been  continued  on 
the  docket  as  to  the  county  of  Wayne,  the  said  complainants 
filed  a  third  amended  bill,  containing  the  same  allegations  and 
prayer  as  the  former  bill,  and  setting  up,  in  addition  to 
such  allegations,  that  on  November  19,  1858,  the  county  of 
Wayne  hud  made  a  written  contract  with  Vanduzer,  Smith  & 
Co.  for  tho  construction  of  a  railroad  from  Mt.  Vernon,  in  Jef- 
ferson County,  to  the  eastern  boundary  of  Wayne  County,  thus 
running  across  the  entire  width  of  the  latter  county ;  and 
that  Vanduzer,  Smith  &  Co.  thereafter  assigned  their 
interest  in  said  contract  to  the  Mt.  Vernon  Rail- 
road Company,  The  contract  thus  assigned  is  more  fully 
described  in  Kenicott  v.  Supervisors,  sitpra,  and  Scales  v.  King, 
supra.  This  bill  was  answered  by  the  county  upon  its 
merits.  A  hearing  was  had  on  January  2,  1871,  and  a  decree 
dismissing  the  bill  was  entered  by  said  circuit  court  of  the  United 
States.  This  decree,  upon  appeal  to  the  Supreme  Court  of 
the  United  States,  was  reversed,  and  the  cause  was  remanded 
to  the  circuit  court,  as  will  be  seen  by  reference  to  Kenicott  v. 
Supervisors,  supra.  On  June  25,  1874,  a  decree  was  entered  by 
said  circuit  court,  foieclosing  the  mortgage  and  trust  deed  exe- 
cuted by  the  county  of  Wayne,  and  directing  a  sale  of  said  lands 
by  the  master,  and  ordering  that  said  county,  and  all  persons 
claiming  under  it  as  purchasers  or  gv^ntees,  pendente  lite  "  since 
the  commencement  of  this  suit,"  be  forever  burred  and  fore- 
closed from  all  equity  of  redemption  in  said  mortgaged  premises, 
unless  redeemed  according  to  the  laws  of  Illinois  ;  and  that  the 
purchaser  at  the  master's  sale  be  let  into  possession,  and  that 
said  county  or  railroad  company,  or  purchaser  pendente  lite 
under  either  of  them,  who  might  be  in  possession,  and  any 
person  coming  into  possession  since  the  commencement  of  the 
suit,  should  surrender  possession  on  the  production  of  the 
master's  deed.  The  decree  of  foreclosure  and  sale  thus  entered 
by  the  circuit  court  was  taken  by  appeal  to  the  Supreme 
Court  of  the  United  States,  and  was  there  affirmed,  as  will  be 
seen  by  reference  to  the  case  of  Supervisors  v.  Kenicott,  94  U. 
S.  498.  Thereafter,  on  September  18,  1877,  a  sale  was  made 
by  the  master  in  chancery  of  the  circuit  court,  under  said  decree, 
to  the  trustees  of  the  complainants,  and  a  certificate  of  purchase 
was  issued  to  them,  and  by  them  assigned  to  N.  M.  Broad '.veil, 
to  whom  a  master's  deed  of  said  hinds  was  executed  on  May  5, 
1879.     By  a  regular  claim  of  conveyance,  the  title  thus  acquired 


554  TITLE    BY    ORIGINAL    ACQUISITION. 

by  Broadwell  has  passed  to  and  become  vested  in  the  appellee 
herein,  Charles  lie. 

On  October  13,  1868,  the  county  clerk  of  Wayne  County,  in 
pursuance  of  an  order  entered  on  OctoI)er  5,  1868,  executed  quit- 
claim deeds  to  the  Illinois  Southwestern  Railway  Company,  con- 
veying all  the  lands  involved  in  the  Kenicott  suit,  and  other  lands, 
which  deed,  by  the  terms  of  a  contract  between  said  county 
and  said  railway  company,  were  held  in  escrow  by  one  Alexander, 
as  trustee,  until  the  fulfillment  of  certain  conditions,  and  were 
not  delivered  until  July  1,  1870  (said  conditions  having  been 
performed  on  April  14  and  May  1,  1870),  and  were  not  recorded 
until  June  15,  1872.  The  Illinois  Southeastern  Railway  Company 
was  in  December,  1869,  consolidated  with  the  Pana,  Springfield 
&  Northwestern  Company,  the  name  of  the  consolidated  com- 
pany being  the  Springfield  &  Illinois  Southeastern  Railway 
Company.  By  deed  dated  July  29,  1871,  and  recorded  June 
15,  1872,  the  Illinois  Southeastern  Railway  Company  conveyed 
the  lands  in  question  to  the  Springfield  &  Illinois  South- 
eastern Railway  Company ;  and  the  latter  company,  by  deed 
dated  July  10,  1871,  and  recorded  May  31,  1872,  con- 
veyed said  lands  to  said  C.  A.  Beecher.  By  regular  convey- 
ances, whatever  title  was  thus  acquired  by  C.  A.  Beecher  has 
passed  to  and  become  vested  in  the  appellant  herein,  George  W. 
Norris. 

As  the  Illinois  Southeastern  Railway  Company  did  not  obtain 
its  deed  from  Wayne  County  until  1868,  it  was,  of  course,  bound 
to  take  notice  of  the  mortgage  made  by  the  county  to  Seymour 
as  trustee,  which  had  been  executed  and  recorded  as  earlv  as 
1859.  The  deed  of  1868  was  subject  to  the  mortgage  of  1859, 
and  the  holders  of  the  bonds  secured  hy  the  mortgage  were 
entitled  to  priority,  in  the  enforcement  of  their  security  over  the 
subsequent  purchaser  of  the  equity  of  redemption.  It  is  shown 
by  the  proof,  and  is  not  denied  by  appellant,  that  the  grantee 
in  the  deed  of  1868  had  actual,  as  well  as  constructive,  notice 
of  the  mortgage  of  1859,  But  it  is  claimed  that  such  notice 
cannot  have  the  effect  of  postponing  the  rights  of  those  claim- 
ing under  the  deed  to  the  rights  of  those  claiming  under  the 
mortgage,  because  of  the  alleged  void  character  of  the  mort- 
gage. It  is  urged  that  the  county  court  had  no  power  to 
execute  the  mortgage;  that  consequently  nothing  passed  by  it  ; 
and  that  the  grantee  in  the  deed  of  1868,  having  notice  of  such 
want  of  power,  was  authorized  to  disregard  the  mortgage,  and 
accept  a  conveyance  of  the  land  as  though  no  such  moitgage 
existed.  In  support  of  this  position,  reference  is  made  to  the  case 
of  Scates  v.  King,  110  111.  456.     It  was  held  in  that  case  that  the 


POSSESSION  NOT  ADVERSE  TO  MORTGAGEE  UNTIL  DEFAULT.       555 

trust  deed  and  mortga<i:e  made  by  the  county  of  Wayne  in  1859 
were  void  for  want  of  power  to  execute  them.  There,  the  deeds 
to  King  were  executed  by  the  county  before  the  bill  to  foreclose 
the  mortgage  toSeytnour  was  filed,  and  King  was  not  made  a  party 
to  the  foreclosure  proceedings.  Accordingly,  his  rights  were 
not  cut  off  by  the  foreclosure  decree.  Here,  however,  the  rail- 
way company,  under  whli-h  ap[)ellant  holds  its  title,  obtained  its 
deed  after  the  bill  to  foreclose  was  filed,  and  after  the  service  of 
process  therein ;  and  the  company  was  therefore  a  purchaser ^en- 
dente  lite^  and  took  its  interest  in  the  land  subject  to  the  fore- 
closure decree,  as  will  hereafter  appear.  We  concur  in  the  doc- 
trine announced  in  Scatc-s  v.  King,  supra,  as  being  in  harmony 
with  the  decisions  of  this  court,  and  would  follow  that  case  as  a 
precedent,  rather  than  the  case  of  Kenicottv.  Supervisors,  supra, 
were  it  not  that  the  decision  in  the  latter  case  has  conclusively 
settled  the  title  to  the  property  involved  in  the  case  at  bar  as 
between  appellant  and  appellee.  In  Konicott  v.  Supervisors, 
sujjra,  the  Supreme  Court  of  the  United  States  held  that  the 
county  of  Wayne  had  the  power  to  execute  the  trust  deed  and 
mortgage  to  Seymour,  and  that  the  same  were  valid  and  that 
Kenicolt  and  the  other  holders  of  the  bonds  thereby  secured 
were  entitled  to  a  decree  foreclosing  the  same.  The  same  con- 
elusion  was  announced  in  the  subsequent  case  of  Supervisors  v. 
Kenicott,  94  U.  S.  498.  The  decision  thus  made  by  the  Federal 
court,  whether  right  or  wrong,  is  binding  upon  the  parties  to 
the  foreclosure  suit  and  those  purchasing  during  its  pendency. 
As  to  them  it  is  res  adjudicata,  and  cannot  be  attacked  collater- 
ally. The  circuit  court  of  the  United  States  had  jurisdiction 
over  the  subject-matter  and  the  parties  in  the  foreclosure  suit; 
and  where  it  is  made  to  appear  that  a  court  has  such  jurisdic- 
tion, the  judgment  or  decree  pronounced  by  it  must  be  held  to 
be  conclusive  and  binding  upon  the  parties  thereto  and  their 
privies,  although  the  court  may  have  proceeded  irregularly,  or 
erred  in  its  application  of  the  law  in  the  case  before  it.  Ma- 
loney  v.  Dewey,  127  111.  395;  19  N.  E.  848.  In  Scates  v.  Kinir, 
supra,  we  said  :  "  It  is  claimed  by  counsel  for  appellant  that  thi; 
decree  of  foreclosure  in  the  United  States  court  finally  settled, 
as  res  adjudicata,  the  fact  of  making  the  mortgage,  the  power 
and  authority  of  the  county  to  make  it,  and  the  liability  of  the 
county  to  pay  the  debt  thereby  secured.  It  is  conceded,  how- 
ever, that,  so  far  as  the  county  is  concerned,  the  above  facts  are 
conclusively  settled  by  the  decree  in  that  case." 

But  appellant  contends  that  the  grantee  in  the  deed  of  1868 
was  not  a  purchaser  pendente  life  in  such  sense  that  its  rights 
can  be  controlled  by  the  rule  applicable  to  purchases  made  dur- 


55 o  TITLE   BY   ORIGINAL    ACQUISITION. 

ing  the  pendency  of  litigation.  Chancellor  Kent  has  said  that 
lis  pendejis  is  no  more  than  an  adoption  of  the  rule  in  a  real 
action  at  common  law,  where,  if  the  defendant  aliens  after  the 
pendency  of  the  writ,  the  judgment  in  the  real  action  will  over- 
reach such  alienation.  Miirry  v.  Ballou,  1  Johns.  Ch.  556.  It 
was  one  of  the  ordinances  of  Lord  Bacon  that  "  no  decree  bind- 
oth  any  tliat  come  in  bona  fide  by  the  conveyance  from  the 
defendant  before  the  bill  exhibited,  and  is  made  no  party  either 
by  bill  or  order;  but  where  he  comes  in  pendente  lite^  and  while 
the  suit  is  in  full  prosecution,  and  without  any  color  or  allow- 
ance or  privity  of  the  court,  where  the  decree  bindeth."  Id. 
Whether  the  object  oilia  pendens  be  constructive  notice,  or  to 
hold  the  subject  of  the  suit,  or  res,  within  the  power  of  the 
court,  so  as  to  enable  the  court  to  give  efTect  to  its  judgment  or 
decree,  the  decision  of  the  court  will  be  binding,  not  only  on 
the  litigant  parties,  but  also  on  those  who  derive  title  under 
them  by  alienations  made  pending  the  suit.  2  Pom.  Eq.  Jur.,  § 
632.  The  doctrine  of  lis  pendens  is  founded  upon  public  con- 
venience and  necessity.  Durand  v.  Lord,  115  111.  610;  4  N.  E. 
483.  The  lis  pendens  begins  from  the  service  of  the  summons 
or  subpoena  after  the  filing  of  the  bill.  Grants.  Benedict,  96  111. 
513.  A  purchaser  from  the  defendant  while  the  suit  is  pending 
acquires  his  interest  subject  to  such  decree  as  may  be  rendered 
on  the  hearing.  If  this  were  not  the  rule,  parties  might,  by 
transferring  their  interests  during  the  pendency  of  the  suit, 
defeat  its  whole  purpose,  and  make  the  litigation  endless.  A 
purchaser  pendente  lite  from  a  mortgagor  is,  to  all  intents  and 
purposes,  a  party  to  the  decree  of  foreclosure,  because  the  same 
proceedings  can  be  had  against  him  which  can  be  taken  against 
the  juortgagor.  He  who  purchases  property  during  the  pendency 
of  the  suit  is  as  exclusively  bound  by  the  result  of  the  litigation 
as  if  he  had  been  a  party  thereto  from  the  outset.  Loomis  v. 
Kiley,  24  III.  307;  Jackson  v.  Warren,  32  111.  331  ;  Dickson  v. 
Todd,  43  111.  504;  1  Story  Eq.  Jur.,  §  406;  Tilton  v.  Cofield, 
93  U.  S.  163.  An  application  of  these  principles  to  the  facts  of 
the  present  case  will  show  that  the  Illinois  Southeastern  Railway 
Company,  and  those  deraigning  their  title  from  that  company, 
were  as  much  bound  by  the  decree  of  foreclosure  in  the  Kenicott 
suit  as  though  they  had  been  parties  thereto.  As  the  bill  was 
filed  on  March  7,  1865,  and  summons  was  served  upon  Wayne 
County  on  March  11,  1865,  the  railway  company,  taking  a  deed 
from  the  county  in  October,  1868,  was  certainly  a  purchaser 
pendente  lite. 

Is  there  anything  in  the  pleading  or  amendments  or  mode  of 
prosecution  in    the  foreclosure  suit  which  relieves  the  deed  of 


POSSESSION  NOT  ADVERSE  TO  MORTGAGER  UNTIL  DEFAULT.       557 

18()8  from  the  operation  of  the  ireneral  rules  as  to  lis  pendens? 
It  ia  claimed  that  the  oriirinal  hill,  tiled  on  March  7,  18(55,  \va8 
loo  indetiiiite  in  its  allegations  and  in  the  language  of  its  prayer 
to  warrant  a  decree  of  foreclosure.  In  addition  to  what  has 
already  been  stated  in  relation  to  the  contents  and  prayer  of  said 
bill,  it  sets  u|)  the  act  of  February  15,  1<S55,  incorporating  the 
Mt.  Vernon  Railroad  Company  for  building  a  railroad,  etc,  ; 
alleges  the  ownership  of  tlie  swamp  lands  by  Wayne  County, 
and  that  the  county  was  authorized,  by  section  9  of  s:»id  act,  to 
aid  in  the  construction  of  said  railroad  under  the  provisions  of 
sections  7,  8,  and  9  of  said  act  ;  that  the  county  court  of  said 
county,  on  September  28,  1855,  ordered  an  election  to  be  held 
on  November  5,  1855,  under  said  section  8,  to  decide  whether 
said  lands  should  be  mortgraged  to  aid  in  such  construction  ;  that 
said  election  resulted  in  favor  of  appropriating  the  swamp  lands 
for  such  purpose ;  that  in  pursuance  of  such  vote,  and  of  an  order 
entered  on  April  20,  1859,  said  county  executed  two 
indentures  on  that  day  to  Isaac  Seymour,  trustee,  convey- 
ing said  swamp  lands  in  trust  for  the  uses  and  purposes 
therein  described,  copies  of  which  were  filed  as  Exhibits  A 
and  B,  and  made  a  part  of  the  bill.  The  bill  then  gives  a 
list  of  lands  conveyed,  and  further  alleges  that  complainants 
were  holders  of  some  of  the  bonds  secured  by  said  inden- 
tures ;  that  the  interest  on  the  same  had  not  been  paid  by  the 
county  of  Wayne  or  the  railroad  company;  and  that  the  said 
mortgages  and  trust  deed  had  become  forfeited  by  reason  of 
such  default,  etc.  The  objections  which  counsel  make  to  the 
bill,  as  we  understand  them,  are  that,  while  the  trust  deed  made 
by  the  county  was  tiled  as  an  exhibit,  the  mortgage  executed  by 
it  was  not  filed  as  an  exhibit,  and  that  there  was  not  a  specific 
prayer  for  foreclosure.  We  do  not  deem  it  necessary  to  discuss 
the  sufficiency  or  insufficieny  of  the  original  bill,  because,  even 
if  it  was  so  defective  in  the  respects  indicated  as  not  to  be 
effective  as  a  Us  pendens,  the  amended  bills  filed  on  March  29, 
1866,  and  October  1,  1866,  were  free  fiom  the  defects  com- 
plained of.  These  amended  bills  of  1866,  particularly  the  sec- 
ond one,  not  only  described  more  fully  all  the  proceedings 
referred  to  in  the  original  bill,  but  they  set  forth  in  detail  and 
at  large  the  provisions  of  the  mortgage  made  by  the  county  to 
Seymour  on  April  20,  1859,  describing  the  lands  thereby  con- 
veyed, and  stating  that  said  mortgage  had  been  recorded  in  the 
recorder's  oflSce  of  Wayne  County  on  a  certain  day  and  in  a 
certain  book,  and  on  certain  pages  of  that  book.  The  prayer 
contained  all  that  was  in  the  prayer  of  the  original  bill,  and,  in 
addition  thereto,  prayed  either  for  the  appointment  of  a  new 


558  TITLE    BY    ORIGINAL   ACQUISITION. 

trustee,  in  the  [)lcicoof  Seymour,  and  that  he  be  directed  to  execute 
the  trust,  or,  in  the  alternative,  as  follows:  "  If  it  shall  appear 
that  your  orators  are  entitled  to  a  d<!crce  foreclosing  said  mort- 
gages or  deed  of  trust,  and  are  entitled  to  relief  by  a  direct  order 
of  the  sale  of  said  lands  or  of  any  part  thereof,  that  said  decree 
may  be  rendered,  and  for  such  other  and  further  relief  as  to 
your  honors  may  seem  equitable  and  just." 

Three  facts  are  necessary  to  the  existence  of  a  valid  lis 
jyendens:  First,  the  property  involved  must  be  of  such  a  char- 
acter as  to  be  subject  to  the  rule;  second,  the  court  must  have 
jurisdiction  both  of  the  person  and  the  res;  third,  the  res^  or 
property  involved,  must  be  sufficiently  described  in  the  plead- 
ings. Benn.  Lis  Pend.,  p.  153.  We  think  that  all  these  re- 
quirements are  met  in  the  amended  bills  of  1866.  The  legal 
maxim  that  that  is  certain  which  can  be  made  certain  ai:)plies  to 
the  question  whether  property  is  sufficiently  described  to  create 
lis  pendens.  The  description  of  the  property  may  be  such  that, 
by  reference  and  upon  inquiry,  it  may  be  ascertained.  It  must 
be  so  pointed  out  in  the  proceedings  as  to  warn  the  public  that 
they  intermeddle  at  their  peril;  and  any  one  reading  the  bill 
must  be  able  to  learn  thereby  what  property  is  intended  to  be 
made  the  subject  of  litigation.  Miller  v.  Sheery,  2  Wall.  237; 
Green  v.  Slayter,  4  Johns.  Ch.  38;  Allen  v.  Poole,  54  Miss. 
323;  13  Am.  &  Eng.  Enc.  Law,  p.  877.  Where  a  bill  originally 
so  defective  in  the  description  of  the  property  involved  or  in  the 
language  of  its  prayer,  as  not  to  create  a  lis  pendens,  is  subse- 
quently cured  by  amendment  in  these  particulars,  the  lis  pendens 
will  commence  at  the  time  of  filing  the  amendment,  where  the 
defendant  has  been  served  with  process.  13  Am.  &  Eng.  Enc. 
Law,  p.  886,  and  cases  in  note.  In  the  case  at  bar  the  purchase 
pendente  lite  was  made  after  the  amendments  of  1866,  and  after 
service  of  summons  upon  the  county. 

It  is  further  contended,  on  behalf  of  appellant,  that  lis  pen- 
dens ended  in  June,  1868,  when  a  decree  of  sale  was  entered 
upon  the  mortgage  executed  by  the  Mt.  Vernon  Railroad  Com- 
pany. The  bill  was  filed  to  foreclose  three  instruments,  —  the 
mortgage  made  by  the  railroad  company,  the  mortgage  made  by 
the  county,  and  the  trust  deed  made  by  the  county.  All  these 
instruments  were  parts  of  one  general  scheme  for  the  raising  of 
funds  to  build  a  railroad  through  the  county  (Scates  v.  King, 
supra)  ;  but  the  mortgage  executed  by  the  railroad  company 
was  intended  more  particularly  to  cover  the  right  of  way, 
franchises  and  rolling  stock.  If  the  court  erred  in  rendering  two 
decrees  of  foreclosure,  instead  of  one,  it  was  an  error  for  which 
the    foreclosure    proceeding    cannot    be    collaterally    attacked. 


POSSESSION   KOT   ADVERSE   TO   MORTGAGE    UNTIL   DEFAULT.    559 

After  the  decree  or  order  of  1868,  the  cause  was  regularly  con- 
tinued on  the  docket,  until  the  final  decree  was  entered  under 
which  the  land  was  sold.  It  has  been  said  that,  in  order  to  prevent 
a  suspension  of  lis  pendens,  there  must  be  a  "  full  "  or  continuous 
prosecution  of  the  suit.  But  the  rule  in  reference  to  a  contin- 
uous prosecution  simply  requires  that  there  shall  be  no  such 
neglect  in  the  prosecution  as  cannot  bo  explained  and  appears  to 
be  inexcusable.  Mere  lapse  of  time  does  not  indicate  such  neg- 
ligence. If  the  cause  finally  goes  to  decree  or  judgment,  it  will 
be  presumed,  in  the  absence  of  any  showing  that  there  has  been 
a  negligent  intermission  of  the  prosecution,  that  there  has  been 
a  binding  lis  pendens,  and  that  interveners^f^?itZen^eZz7e  are  bound 
by  the  decree  or  judgment.  As  a  general  rule,  there  will  be  no 
estoppel  against  the  right  to  enforce  the  lis  pendens,  unless  the 
plaintiff  or  complainant  in  the  suit  has  been  so  negHgent  in  its 
prosecution  as  to  induce  the  belief  that  such  prosecution  had 
been  abandoned.  Benn.  Lis  Pend.,  pp.  173,  180;  13  Am.  & 
Eng.  Enc.  Law,  pp.  889-891.  In  the  present  case  we  find  noth- 
ing in  the  record  to  show  that  there  was  any  such  negligence  in 
the  prosecution  of  the  foreclosure  suit  as  to  overcome  the 
presumption  of  a  binding  lis  pendens. 

It  is  still  further  insisted  by  the  appellant  that  by  reason  of 
the  amended  bill  filed  on  January  17,  1870,  a  new  lis  p)endens  was 
created  from  that  time,  which  could  not  affect  the  interests  ac- 
quired by  the  grantee  in  the  previous  deed  of  1868.  There  are 
cases  where  the  lis  pendens  will  begin  with  the  filing  of  the  amend- 
ment, and  will  not  relate  back  to  the  commencement  of  the  action, 
so  as  to  affect  intervening  rights.  This,  however,  is  only  true  where 
the  amendment  sets  up  a  new  equity,  or  where  the  party  making 
the  amendment  brings  forward  a  new  claim,  or  a  different  and  dis- 
tinct ground  of  relief,  not  before  asserted.  Benn.  Lis  Pend.,  pp. 
97,  160;  Tilton  v.  Cofield,  supra;  Bank  v.  Sherman,  101  U.  S. 
403  ;  Stoddard  v.  Myers,  8  Ohio,  203  ;  Gibbon  v.  Dougherty, 
10  Ohio  St.  365  ;  Lumber  Co.  v.  Gustin,  54  Mich.  624  ;°  20  N. 
W.  616;  IFreem.  Judgm.,  §  199;  Bradley  v.  Luce,  99  111.  234; 
Connelly  v.  Stone,  1  Mete.  (Ky.)  652;  Worthom  v.  Boyd,  QQ 
Tex.  401;  1  S.  W.  109.  Purchasers  pendente  lite  must  take 
notice  of  everything  averred  in  the  pleadings,  pertinent  to  the 
issue  or  to  the  relief  sought.  Center  v.  Bank,  22  Ala.  757  ; 
Allen  V.  Poole,  supra;  Wortham  v.  Boyd,  supra;  13  Am.  & 
Eng.  Enc.  Law,  p.  886.  The  only  new  matter  to  which  counsel 
refer  as  being  set  up  in  the  amended  bill  of  1870  is  the  contract 
between  the  county  and  Vanduzer,  Smith  &,  Co.  to  build  a  rail- 
road through  the  county,  etc.  Kenicott  v.  Supervisors,  supra; 
Scates  V.  King,  supra.     No  relief  was  asked  under  the  contract. 


560  TITLE    BY    ORIGINAL    ACQUISITION, 

No  new  cause  of  action  was  set  up  (liffercnt  from  that  slated  in 
the  hills  of  18fi5  and  18()().  The  contract  was  simply  evidence 
of  the  power  of  the  county  to  exocnte  tlie  mortgage  and  trust 
deed.  The  bills  already  filed  had  alleged  the  execution  of  the 
moitgage  by  the  county,  in  pursuance  of  an  order  of  the  county 
court  for  the  purpose  of  aiding  in  the  construction  of  a  railroad, 
and  had  asked  for  a  foreclosure  of  the  mortgage.  Such,  also,  was 
the  scope  and  character  and  prayer  of  the  bill  of  1870.  The 
mere  pleading  of  a  matter  of  evidence  did  not  change  the  essen- 
tial features  of  the  case  made  by  the  bills  already  filed.  We  do 
not  think  that  there  was  anything  in  the  amendment  of  1870 
which  prevents  the  lis  ppndens  from  relating  back  to  the  filing  of 
the  amended  bills  in  18(56,  and  subjecting  the  interest  acquired  by 
the  deed  of  1868  to  the  operation  of  the  foreclosure  decree. 

Counsel  for  appellant  urge  upon  our  attentir)n  various  reasons 
why  the  complainants  in  the  foreclosure  suit  were  chargeable 
with  notice  of  the  execution  of  the  deed  of  1868  and  of  the  rights 
of  those  holding  under  it.  Where  there  is  a  purchase  pendente 
lite^  not  only  is  the  purchaser  bound  by  the  decree  that  may  be 
made  against  the  person  from  whom  he  derives  title,  but  "  the 
litigating  parties  are  exempted  from  taking  any  notice  of  the 
title  so  acquired,  and  such  purchaser  need  not  be  made  a  party 
to  the  suit."  1  Story  Eq.  Jur.,  §  406.  He  is  not  a  necessary 
party,  because  his  vendor  or  grantor  remains  as  the  representa- 
tive of  his  interests,  and  the  plaintiff  or  complainant  may  ignore 
his  purchase,  and  proceed  to  final  decree  against  the  original 
parties.  Edwards  v.  Norton,  55  Tex.  405  ;  Smith  v.  Hodsdon, 
78  Me.  180;  3  Atl.  276;  Carter  v.  Mills,  30  Mo.  437;  Steele  v. 
Taylor,  1  Minn.  274  (Gil.  210);  13  Am.  &Eng.  Enc.  Law,  pp. 
900,  901.  It  is  therefore  immaterial  whether  the  complainants 
in  the  foreclosure  suit  had  notice  of  deed  of  1868  or  not. 

Counsel  for  appellant  relies  upon  payment  of  taxes  and  pos- 
session for  seven  successive  years,  under  the  deed  of  1868,  as 
color  of  title.  This  statute  could  not  be  invoked  against  the 
complainants  in  the  foreclosure  suit  by  the  county  of  Wayne  or 
its  grantee  during  the  pendency  of  the  suit.  While  the  relation 
of  mortgagee  and  mortgagor  continues,  neither  party  in  pos- 
session can  interpose  the  statute  of  limitations  as  a  defense 
against  the  other.  The  statute  can  only  commence  to  run  after 
that  relation  has  been  terminated  in  some  of  the  modes  known  to 
the  law.  Rockwell  v.  Servant,  63  III.  424.  The  mortgagor 
cannot  defeat  the  mortgagee's  right  of  action  by  retaining  pos- 
session and  paying  taxes  for  seven  successive  years ;  and  it  is  as 
much  the  duty  of  a  grantee  of  the  mortgagor,  receiving  his  pos- 
session from  the  mortgagor,  to  pay  the  taxes  upon  the  property, 


POSSESSION  NOT  ADVERSE  TO  MORTGAGEE  UNTIL  DEFAULT.       5(jl 

as  it  is  the  duty  of  the  mortgagor  himself  to  do  so.  The  limita- 
tion law  of  1839  has  do  application  to  such  a  case.  Hasfan  v. 
Parsons,  67  111.  170;  Palmer  v.  Snell,  111  111.  161.  Noi^  does 
the  statute  of  limitations  run  in  favor  of  a  purchaser  pendente 
lite.  Such  a  purchaser  in  possession  of  land  so  purchased  will 
not  be  regarded  as  holding  it  adversely  to  the  parties  to  the  suit 
during  the  litigation.  Lynch  v.  Andrews,  25  W.  751.  In  the 
present  case  the  sale  under  the  decree  of  foreclosure  was  not 
made  until  September  18,  1877,  and  the  time  of  redemption  did 
not  expire  until  December  18,  1878.  Not  until  the  latter  date 
was  the  purchaser  under  the  foreclosure  decree  entitled  to  a 
master's  deed,  nor  until  that  date  could  the  mortgagor  or  his 
grantee  assert  an  adverse  possession.  Emmons  v.  Moore,  85  111. 
304  ;  Lehman  v.  Whittington,  8  111.  App.  374.  The  proof  does 
not  show  a  payment  of  taxes  for  seven  successive  years,  after 
December  18,  1878,  or  after  September  18,  1877,  by  the  grantee 
in  the  deed  of  1868,  or  by  any  of  the  parties  holding  under  that 
deed.  We  cannot  discover  that  appellant  or  any  of  his  grantors 
have  acquired  title  under  the  limitation  law,  which  provides  for 
possession  and  payment  of  taxes  for  seven  successive  years  under 
color  of  title. 

The  considerations  already  presented  dispose  of  the  claim  that 
title  was  acquired  under  the  first  section  of  the  limitation  law  in 
regard  to  possession  for  20  years.  Whatever  possession  the 
grantee  in  the  deed  of  1868,  or  those  holding  thereunder,  may 
have  had  during  the  period  of  10  years  from  1868  to  1878, 
whether  such  possession  is  claimed  under  the  7-years  limita- 
tion, or  under  the  20-years  limitation,  was  not  adverse 
to  the  mortgagees  prosecuting  the  foreclosure  suit  against  the 
county,  but  was  subordinate  to  their  rights.  After  deducting 
the  time  during  which  the  foreclosure  suit  was  pending, 
there  was  no  adverse  possession  for  20  years  by  appellant  or  any 
of  his  grantors,  near  or  remote.  The  proof  does  not  show  any 
such  possession  as  meets  the  requirement  of  the  statute  in  regard 
to  20  years'  possession.  Where  the  possession  of  land  alone  is 
relied  upon  for  any  legal  purpose,  in  the  absence  of  paper  title, 
it  should  be  a  pedis  possessio,  —  an  actual  occupancy  of  the 
premises  in  question,  —  and  not  a  mere  constructive  possession. 
Webb  V.  Sturtevant,  1  Scam.  181  ;  Illinois  Mut.  Fire  Ins.  Co.  v. 
Marseilles  Manuf'g  Co.,  1  Oilman,  236;  Medley  v.  Elliott,  62 
III.  532;  City  of  Champaign  v.  McMurray,  76  111.  353  ;  Schneider 
V.  Botsch,  90  111.  577.  Under  the  first  section  of  the  limitation 
law,  which  provides  that  real  actions  for  the  recovery  of  land 
must  be  brought  within  20  years,  etc.,  no  deed  or  paper  title  is 
necessary;   it  is  sufficient  to  take  possession  under  a  claim  of 

36 


562  TITLE    IJV    OIJKHNAL    ACQUISITION. 

ownership.     Weber  v.  Andorsctn,  73  III.  480;   Shaw  v.  Schoon- 
over,  130  111.  448;   22  N.  E.  589.     The  judgment  of  the  circuit 
court  is  affirmed.     Affirmed. 
Keheurinff  denied. 


Adverse    Possession    in    Case    of  Joint    Tenancy  —  Effect  on 

liemaiuder. 

Watkins  v.  Green,  101  Mich.  493;  60  N.  W.  44. 

Opinion  by  Grant,  J. 

The  defendant  executed  to  plaintiff  a  warranty  deed  of  cer- 
tain lands.  This  action  is  brought  to  recover  for  legal  breaches  of 
the  covenant  of  warranty.  The  title  to  the  property  was  orig- 
inally in  one  Toussaiiit  L'Esperance,  who  died  intestate  in  1842, 
leaving  a  widow  and  six  children.  He  bequeathed  one-third  of  the 
land  in  fee  to  his  widow,  and  a  life  estate  in  the  remainder.  Upon 
the  termination  of  the  life  estate  the  two-thirds  were  bequeathed 
in  equal  shares  to  his  six  children.  Prior  to  1853  the  land  had 
been  unoccupied,  except  that  the  timber  had  been  removed.  In 
October,  1850,  the  entire  land  was  sold  for  the  taxes  of  1848, 
and  was  again  sold  in  October,  1851,  for  the  taxes  of  1849. 
October  21,  1851,  the  auditor  general  issued  his  deed  to  Edward 
Meyers  upon  the  first  sale,  and  on  November  16,  1852,  a 
second  deed  upon  the  sale  of  1851.  The  first  sale  was  to  one 
Williams,  who  assigned  to  Meyers.  The  second  sale  was 
direct  to  Meyers.  Two  of  the  children  died,  leaving  no  issue. 
One  is  dead,  leaving  one  child,  and  three  are  still  living. 
The  widow  died  May  2,  1887.  July  19,  1851,  Meyers 
obtained  by  quitclaim  deed  the  interest  of  Edward,  one 
of  the  six  children,  who  was  the  owner  of  an  undivided  one- 
ninth.  May  23,  1854,  the  widow  and  two  of  the  children  quit- 
claimed their  interests  to  one  Nathan  H.  White,  who,  on  July  1st 
of  the  same  year,  conveyed  the  land  by  quitclaim  deed  to  one 
Daniel  Ball.  Ball  deeded  to  one  Boltwood  in  1857.  June  4, 
1858,  the  interests  of  two  of  the  other  children  passed  by  guard- 
ian's deed  to  one  Dow,  who  in  turn  conveyed  these  interests  to 
Boltwood.  October  3,  1853,  the  entire  land  was  sold  for  the 
taxes  of  1851  and  1852.  Two  deeds  were  issued  upon  these  sales 
to  one  Stevens,  who,  on  July  2,  1855,  conveyed  the  interest 
acquired  by  these  deeds  to  Ball.  Ball  conveyed  to  White,  and 
the  tax  titles  passed  to  Boltwood  under  de.nl  from  White  already 
referred  to.  May  17,  1887,  Boltwood  conveyed  to  James  B. 
Judson.     In    1886   Judson    purchased  the  interest   of    the    two 


ADVERSE    POSSESSION    IN    CASE    OF    JOINT    TENANCY.  503 

remaining  heirs  of  Toussaiiit  L'Esper.ince.  There  is  no  com- 
petent evidence  that  Meyers  ever  went  into  possession  of  the 
land,  or  was  intniste(J  with  its  care  uiid  supervision,  either  by 
L'Esperance  or  his  widow.  The  only  testimony  upon  this  sub- 
ject is  given  by  f)ne  of  the  children  of  L'Esperance,  who 
testified  to  his  understanding  from  conversations  ho  had 
with  his  mother.  Such  testimony  was  hearsay  and  in- 
competent. .Tuly  4th,  1853,  Meyers  conveyed  the  entire  land 
to  one  John  H;mley  by  warranty  deed.  The  land  was  then  in 
the  state  of  nature,  except  that  the  timber  had  been  removed, 
and  was  covered  with  water  and  willows.  Hanley  immediately 
went  into  possession  with  his  family,  drained  and  fenced  it,  and 
the  following  year  built  a  house,  barn  and  other  buildings  upon 
it,  and  continued  in  such  possession  until  he  conveyed  by  war- 
ranty deed  to  defendant.  Green,  October  13,  1879  ;  meanwhile 
paying  the  taxes  and  cultivating  and  improving  the  land.  Green 
executed  a  warranty  deed  to  plaintiff,  Watkins,  January  2,  1881. 
Green  occupied  the  land,  through  tenants,  until  the  conveyance 
to  plaintiff.  Mr.  Judson  commenced  an  action  of  ejectment 
against  the  plaintiff,  who  notified  defendant  of  Judson's  claim, 
and  demanded  that  ho  defend  the  suit.  This  defendant  refused, 
claiming  that  he  had  a  good  title  by  adverse  possession.  Plain- 
tiff then  purchased  the  interests  held  by  Judson,  and  brought 
this  suit.  The  court  below  directed  a  verdict  for  the  defendant, 
holding:  "  (1)  That  John  Hanley  went  into  possession  of  the 
property  in  dispute  under  a  claim  of  title,  i.  e.,  the  Meyers  tax 
deeds  and  his  deed  from  Meyers,  and  that  under  his  claim  he 
held  an  open,  notorious,  hostile,  distinct,  and  adverse  posses- 
sion for  over  twenty  years.  (2)  That,  of  the  '  patent  title,' 
defendant  obtained  one-ninth  by  his  deed  from  Meyers. 
(3)  That  the  statute  of  limitations  had  run  in  favor  of 
Hanley  and  his  successors,  again-t  the  widow,  as  to  the 
three-ninths  willed  to  the  widovv  absolutely.  (4)  That  there 
was  a  merger  of  the  life  estate  and  the  three-ninths  of  the  estate 
obtained  from  Enos,  Philip  and  Charles,  and  passing  to  Bolt- 
wood  on  June  12,  1860,  and  that  the  statute  of  limitations  had 
run  against  the  three-ninths,  in  favor  of  Hanley  and  his  succes- 
sors. (5)  That  the  Sears  Stevens  tax  titles  were  paramount 
titles,  and,  when  purchased  by  Ball,  extinguished  the  two-ninths 
of  the  patent  title  still  held  by  Elizabeth  Crouch  and  Josephine 
Page,  and  the  right  of  entry  accrued  at  once  to  Boltwood,  and 
that  the  statute  of  limitations  had  run  against  the  entire  patent 
title,  in  favor  of  Hanley  and  his  successors.  (6)  That  the  tax 
titles  purchased  by  Meyers  were  paramount  to  the  title  of  the 
children  and  that  of  the    widow,  and  that  Hanley's  possessioQ 


564  TITLE    BY    OUIOINAL    ACQUISITION. 

under  the  paramount  title  extinu^iii.shcd  the  title  of  the  widow 
and  children  to  the  property  in  question. 

Meyers,  at  the  time  of  the  purt;hase  of  his  one-ninth  interest 
from  Edward  L'Esperance,  was  not  in  pf)ssession,  nor  did  he  take 
possession  either  under  that  deed  or  his  tax  deeds.  lie  occupied  no 
relation  of  trust  or  confidence  towards  the  widow  and  the  heirs. 
Ho  was  therefore  under  no  oblif^ation  to  pay  their  taxes,  or  to 
buy  up  outstanding  interests  or  titles  for  their  benefit.  Hanley 
went  into  possession  under  his  warranty  deed  from  Meyers, 
claiming  the  entire  title,  and  under  a  deed  which  purported  to 
convey  the  entii'e  and  absolute  fee.  It  cannot  be  said  that  he 
accepted  this  deed  charged  with  any  duty  to  protect  the  life 
estate,  or  the  undivided  interests  of  any  of  the  tenants  in  com- 
mon. Hanley 's  possession  at  once  became  open,  notorious, 
hostile,  and  exclusive  to  all  claiming  any  interest  in  the  land. 
That  possession  continued  in  Hanley  and  his  grantees  for  nearly 
forty  years,  and  more  than  twenty  years  after  tlie  minor  children 
became  of  age.  It  is  established  in  this  State  that  one  who  pur- 
chases an  undivided  interest  in  lands,  and  enters  as  a  stranger  to 
the  rights  of  his  cotenant,  is  not  estopped  from  setting  up 
against  them  an  adverse  title  that  originated  before  his  purchase. 
Blackwood  v.  Van  Vleit,  30  Mich.  118;  Campau  v.  Dubois,  39 
Mich.  274  ;  Sands  v.  Davis,  40  Mich.  14. 

Such  entry  operated  as  an  ouster  of  all  those  having  an 
interest  in  the  land  and  the  right  of  entry.  The  widow  was  then 
entitled  to  the  possession  of  one-third  by  virtue  of  her  one-third 
ownership,  and  to  the  possession  and  enjoyment  of  the  other 
two-thirds  by  virtue  of  her  life  estate.  Clearly,  therefore,  her 
acts  and  those  of  her  grantee  of  these  two  interests,  were  lost 
by  adverse  possession,  and  the  title  vested  in  the  defendant. 

When  Ball  purchased  the  interest  of  the  widow  and  one  of 
the  children,  and  the  tax  titles  for  the  taxes  of  1851  and  1852, 
which  were  then  outstanding,  all  these  titles  became  merged  in 
him.  He  was  then  entitled  to  possession,  as  against  Hanley. 
The  right  of  entry  became  complete,  and  the  statute  of  limita- 
tions began  to  run.  By  the  deed  from  Ball  to  White,  dated  in 
1856,  and  from  White  to  Boltwood,  in  1857,  Boltwood  succeeded 
to  the  same  rights  and  interests,  and  was  entitled  to  possession. 
Boltwood,  by  his  purchase  of  the  interests  of  Enos  and  Philip 
in  1858,  became  possessed  of  the  entire  title,  including  the  life 
estate,  except  the  one-ninth  purchased  by  Meyers  and  the  two- 
ninths  outstanding  in  Josephine  and  Elizabeth.  He  took  no  steps 
to  enforce  his  rights,  and  the  defendant,  by  the  adverse  posses- 
sion of  himself  and  his  grantors,  obtained  title  to  all  the  in- 
terests owned  by  Boltwood.     Boltwood,  being  the  owner  of  the 


POSSESSION   MUST    BE    CONTINUOUS.  565 

life  estate,  was  obligated  to  pay  the  taxes,  and  protect  the  inter- 
ests of  the  remainder-racn.  If  he  chose  to  permit  Hanley  and 
his  grantees  to  remain  in  adverse  and  undisturbed  possession  till 
such  possession  ripened  into  a  valid  title,  neither  he  nor  his 
grantees  can  now  separate  his  interests,  under  the  plea  that,  as  to 
some  of  the  interests,  he  had  not  the  right  of  entry. 

Josephine  and  Elizabeth,  or  their  grantees,  acquired  no 
right  of  entry  until  the  death  of  their  mother,  in  May,  1887, 
when  the  life  estate  terminated.  How.  St.,  §  8700.  As  to  these 
interests,  therefore,  there  has  been  no  adverse  holding,  so  as  to 
convey  title.  Cook  v.  Knowles,  38  Mich.  316  ;  Marble  v.  Price, 
54  Mich.  466;   20  N.  W.  531. 

If,  therefore,  the  tax  deeds  to  Meyers  are  void,  there  was  a 
biieach  of  the  defendant's  covenants  of  warranty,  for  which  the 
plaintiff  is  entitled  to  damages.  Of  course,  if  the  tax  deeds  ob- 
tained by  Meyers  are  valid,  they  cut  off  the  entire  title  of  the 
widow  and  heirs.  Where  the  owner  of  the  life  estate  neglects  to 
pay  the  taxes  assessed  upon  the  land,  and  they  are  sold  under  valid 
taxes  and  valid  proceedings,  the  title  passes  to  the  grantee,  and 
the  only  remedy  of  the  remainder-men  is  against  the  life  owner. 
Judgment  must  be  reversed,  and  a  new  trial  ordered.  The  other 
justices  concurred. 


Possession  Must  Be  Continuous  Throughout  the  Statutory 
Period  of  Limitation  —  Temporary  Absence  No  Abandon- 
ment of  Possession. 

Downing  v.  Mayes,  153  111.  330;  38  N.  E.  620. 

Craig,  J.  This  was  a  petition  for  partition,  brought  by  Caro- 
line Mayes,  who  was  formerly  the  widow  of  William  K.  Strick- 
land, and  the  heirs  of  Strickland,  for  partition  of  N.  E.  \  of 
S.  E.  \,  section  31,  and  N.  W.  \  S.  W.  |,  section  33,  township 
17,  range  12  W.,  in  Cass  County.  Jennie  Mayes  and  Finis  E. 
Downing  were  made  defendants  to  the  petition.  William  R. 
Strickland  died  in  March,  1870,  and  it  is  claimed  that  he  owned 
the  two  tracts  of  land  at  the  time  of  his  death,  and  that  the  lands 
then  descended  to  his  widow  and  children.  As  to  the  west  40- 
acre  tract  in  section  31,  there  is  no  controversy.  The  west  40 
in  section  32  belonged  originally  to  one  Benjamin  Newman,  and 
the  defendant.  Finis  E.  Downing,  claims  title  to  that  tract  under 
deed  from  the  widow  and  the  heirs  of  Newman,  executed  in 
April,  1892,  while,  on  the  other  hand,  petitioners  claim  that 
William  R.  Strickland  entered  into  the  open,  notorious,  adverse 
possession  of  the  land  in  the  spring  of  1866,  claiming  as  owner, 


566  TITLE    BY    OUIOINAL    ACQUISITION. 

and  continued  in  such  possession  until  his  death,  in  1870,  and 
that  his  widow  and  heirs  (petitioners)  have  continued  in  such 
adverse  possession  ever  since,  —  a  i)eriod  of  over  20  years.  On 
the  hearing  the  court  held  that  petitioners,  under  the  evidence, 
established  title  under  the  20-year  statute  of  limitations,  and 
entered  a  decree  according  to  the  prayer  of  the  petition. 

It  appears  from  the  evidence  that  in  the  spring  of  1866,  Will- 
iam R.  Strickland  bought  the  40  in  question  from  Benjamin 
Newnuin,  and  the  40  adjoining  it  on  the  WL-st  from  one  Wagner. 
He  obtained  a  deeil  from  Wagner,  but  the  evidence  fails  to  show 
any  deed  of  contract  in  writing  of  any  character  from  Newman. 
What  the  contract  between  Newman  and  Strickland  really  was 
is  not  disclosed  by  the  evidence  in  this  record.  At  the  time  the 
land  was  of  little  value,  being  all  flat,  swampy  land,  and  being 
subject  to  overflow,  except  five  or  six  acres,  which  was  a  sand 
ridge.  The  fact  that  the  land  at  the  time  was  worth  so  little 
may  have  been  the  reason  the  parties  did  not  take  the  trouble  to 
reduce  their  contract  to  writing.  But,  however  that  may  be,  it 
does  appear  that  in  the  spring  of  1866  William  R.  Strickland 
entered  upon  the  land,  claiming  to  be  the  owner  by  purchase. 
He  built  a  small  house,  stable,  hogpen,  smokehouse,  and  inclosed 
the  entire  80  acres,  with  other  lands.  Strickland  occupied  the 
land  until  he  died,  in  1870.  After  his  death  his  widow  and 
children  continued  to  occupy  the  place  until  the  widow  married 
a  man  named  Mayes,  in  1877,  who  resided  on  land  adjoining. 
After  her  marriage  she  and  her  children  continued  to  cultivate 
the  land  until  the  spring  of  1883,  when  her  husband  moved  to 
Kansas.  Before  leaving  for  Kansas  the  widow  placed  her 
son-in-law.  Powers,  in  the  possession  of  the  land,  and  he 
farmed  it  in  1883  and  1884.  In  the  fall  of  1884  Powers 
moved  to  Kansas,  and  Mrs.  Strickland  returned  to  the  neigh- 
borhood where  the  land  is  located,  and  made  repeated  efforts  to 
lease  it  for  the  year  1885,  but,  owing  to  the  water  on  the  land, 
she  was  not  able  to  procure  a  tenant.  In  the  spring  of  1885 
she  made  a  further  effort  to  rent  the  land,  but  was  unable  to  do 
so.  In  1886  and  1887  she  attempted  to  find  a  tenant  for  the 
place,  but,  owing  to  the  wet  seasons,  she  was  unable  to  procure 
a  tenant.  The  land  was  not  leased  or  farmed  during  the  seasons 
of  1885,  1886,  and  1887;  but  in  February,  1888,  a  man  named 
Mayes  rented  the  land  from  the  widow,  and  occupied  it  from 
March  until  December,  when  he  turned  it  over  to  Jane  Mayes, 
who  has  continued  to  occupy  the  land  ever  since. 

It  is  well  settled  by  the  authorities  that,  where  an  adverse 
possession  is  relied  upon  to  defeat  the  title  of  the  owner  of 
lands,  the  possession  must  be  hostile  in  its  inception,    and    so 


POSSESSION    MUST  BE    CONTINUOUS.  567 

contioue  without  interruption  for  the  period  of  20  years.  It 
must  bo  an  actual,  visible,  and  exclusive  possession,  acquired 
and  retained  under  chiitn  of  title  inconsistent  with  that  of  the 
true  owner.  The  possession  need  not,  however,  ha  under  a  right- 
ful chiini,  or  under  a  paper  title.  Turney  v.  Chanii)erlain,  15  111. 
273.  Strickland  entered  into  possession  of  the  land  chiiming  as 
owner.  He  inclosed  the  I  and  with  other  lands, by  a  fence.  He  erected 
ahou.se,  and  resided  on  tlie  land  with  his  family.  He  reduced 
the  land  to  cultivation.  From  the  evidence  it  is  apparent  that  the 
possession  of  Strickland  was  adverse,  actual,  visible,  and  exclu- 
sive, acquired  and  held  under  claim  of  title  inconsistent  with  the 
true  owner,  and  the  only  question  of  any  serious  diflScultyis 
whether  the  possession  was  continuous  for  a  period  of  twenty 
years.  If  during  the  period  relied  upon  the  possession  was 
abandoned  by  Stricklanti  or  his  heirs,  the  statute  would  cease  to 
run  from  the  time  of  such  abandonment,  and  a  subsequent  re- 
entry would  not  be  available  to  establish  a  continuous  possession. 
When  the  possession  is  lost  or  abandoned,  *the  seisin  of  the  true 
owner  may  be  regarded  as  restored,  and  a  subsequent  entry  con- 
stitutes but  a  new  disseisin,  and  the  statute  would  only  begin 
to  run  from  the  new  entry.  What  constitutes  actual  posssession 
depends  to  a  great  extent  upon  the  nature  of  the  land  and  the 
use  or  uses  to  which  it  may  be  put.  In  Brooks  v.  Bruvn,  18  111. 
542,  it  is  said:  "  As  a  general  rule,  it  is  s^ufBcient  if  the  land  is 
appropriated  to  individual  use  in  such  manner  as  to  apprise  the 
community  or  neighborhood  of  its  locality  that  the  land  is  in  the 
exclusive  use  and  enjoyment  of  another."  Same  rule  was 
declared  in  Kerr  v.  Hitt,  75  111.  51.  In  Coleman  v.  Billings,  89 
111.  188,  it  is  said  :  "  It  is  true,  appellee  testifies  that  there 
were  some  periods  of  time  when  no  one  claiming  under  Miller 
or  herself  was  actually  residing  upon  the  land ;  but  actual 
residence,  either  by  the  party  claiming  or  a  tenant,  is  not 
indispensable  to  continue  possession  or  occupancy.  If  there  is 
a  continuous  dominion,  manifested  by  continuous  acts  of  owner- 
ship, it  is  sufficient."  In  Clements  v.  Lumkin,  34  Ark.  598,  in 
discussing  what  constituted  a  possession  of  lands,  the  court 
said:  "The  possession  of  Topp's  vendee,  once  established  by 
material  acts  of  visible  notorious  ownership,  which  was  done  by 
putting  negroes  upon  it,  and  making  a  deadening,  long  known 
afterwards  as  the  Lumkin  deadening,  must  be  presumed  to  have 
ccmtinued,  until  open,  notorious,  and  adverse  possession  be 
shown  to  have  been  taken  by  another."  In  Hughes  v.  Picker- 
ing, 14  Pa.  St.  297,  the  following  language  of  the  judge  at  nisi 
prhis  seems  to  have  been  approved :  "  In  order  to  destroy  the 
continuity  of  possession,  the  vacancy  must  not  be  merely  occa- 


568  TITLE    liY    OKIOINAL    AC;QUISITI0N. 

sional,  such  as  occurs  io  every  case  where  a  party,  for  some 
cause,  unable  to  obtain  a  tenant,  shuts  up  his  property  for  a 
short  time,  or  indeed  for  a  long  time."  In  Stettnischo  v.  Lamb, 
18  Neb.  6U) ;  2(5  N.  W.  374,  the  court  says;  "  When  a  party 
erects  a  building  on  a  lot,  and  takes  actual  possession  of  the 
same  as  his  own,  the  fact  tiiat  afterwards  he,  or  those  claiming 
under  him,  rent  the  proi)erty,  or  in  case  it  is  unoccu[)ied,  have 
and  claim  the  right  of  possession,  *  *  *  where  there  is  no 
abandonment,  is  not  an  interruption  to  the  possession,  De  La 
Vega  V.  Butler,  47  Tex.  529.  The  reason  is,  the  building,  at 
least,  belongs  to  the  claimant.  He  may  use  it  in  any  manjier  he 
sees  fit,  and  so  long  as  no  one  enters  into  possession  thereof, 
claiming  adversely  to  him,  his  possession  is  not  interrupted. 
And,  possession  being  once  established  in  Mrs.  Towle  by  the 
erection  of  a  building  on  the  lot  in  question,  and  taking  posses- 
sion of  the  same,  such  possession  will  be  presumed  to  have  been 
continued  until  an  interruption  therein  is  proved.  Rayner  v. 
Lee,  20  Mich.  384."  In  Crispen  v.  Hannaven,  50  Mo.  536, 
there  were  several  "  breaks,"  so-called,  when  no  one  was  actu- 
ally cultivating  the  premises,  the  longest  of  which  was  ♦'  from 
about  1861  or  1862  to  1865  or  1866."  In  discussing  the  charge 
to  the  jury  as  to  what  would  constitute  such  a  break  as  would 
destroy  the  possession,  the  court  says:  "  It  might  have  been 
inferred  that  living  off  the  premises,  a  failure  to  cultivate  them 
for  a  year  or  more,  for  whatever  reason,  would  constitute  such  a 
break.  Nothing  would  be  more  erroneous.  While  an  abandon- 
ment  of  the  premises  would  so  break  the  possession  of  him  who 
has  occupied  that  the  constructive  possession  of  the  true  owner 
will  attach,  and  thus  save  his  right  of  entry,  every  failure  to 
cultivate  the  field  for  a  season,  or  a  delay  in  repairing  the  fences 
when  destroyed,  will  not  be  held  to  be  an  abandonment,  if  suffi- 
cient reason  appears." 

From  the  spring  of  1866  to  the  fall  of  1884,  it  is  plain  that 
Strickland  and  his  widow  and  heirs  held  the  continuous  possession 
of  the  land;  and  if  under  the  facts,  the  possession  was  continued 
in  the  widow  and  heirs  from  the  fall  of  1884  until  the  spring  of 
1886,  the  bar  of  the  statute  would  be  complete.  There  is  no  evi- 
dence in  the  record  that  the  widow  and  heirs  intended  to  aban- 
don the  possession  of  the  land,  but,  on  the  other  hand,  when 
Powers  moved  away,  in  the  fall  of  1884,  the  widow  came  to  the 
premises,  and  tried  to  find  a  tenant.  Again,  in  the  spring  of 
1885,  she  made  an  effort  to  find  a  tenant,  but  failed,  on  account 
of  the  wet  season.  After  Powers  left,  in  the  fall  of  1884,  the 
land  remained  fenced.  The  buildings  were  all  left  on  the  land. 
Nothing  was  done  to  indicate  an  abandonment.     Under  such  cir- 


POSSESSION    MUST    BE    CONTINUOUS.  569 

cumstances,  did  the  widow  and  heirs  lose  the  possession  of  the 
premises,  or  did  the  possession  still  remain  in  them,  althou<];h 
they  had  no  tenant  during  the  year  18<S5  or  188G?  During  the 
year  1885,  and  down  to  the  spring  of  1886,  the  improvements 
made  by  the  Stricklands  all  remained  on  the  land.  The  house  had 
been  damaged  somewhat  by  hunters,  but  it  remained  on  the  land. 
The  fenre  put  u|)on  the  land  to  inclose  it  still  remained.  The 
possession  of  the  Stricklands  had  not  been  disturbed.  No 
person  attempted  to  enter  upon  the  land  or  invade  the  posses- 
sion of  the  widow  and  heirs  of  Strickland.  We  think,  therefore, 
that  down  to  the  spring  of  1886  the  widow  and  heirs  of  Strick- 
land were  in  the  possession  of  the  land,  although  they  were  not 
on  the  land  in  person,  and  did  not  have  a  tenant  thereon.  Sup- 
pose a  person  owns  a  tract  consisting  of  40  acres  of  land.  He 
incloses  the  land  with  a  fence,  erects  a  house,  and  resides  upon 
the  land  for  several  years.  He  finally  concludes  to  change  his 
residence,  and  moves  to  another  place,  but  for  some  reason  he 
is  unable  to  procure  a  tenant.  His  house  remains  vacant  for 
three  or  four  years,  and  the  land  is  not  cultivated.  Does  the 
owner,  from  the  fact  h«  cannot  find  a  tenant  for  his  land,  lose 
the  possession  ?  We  think  not.  If  the  widow  and  heirs  had 
abandoned  the  possession  of  the  premises,  or  had  some  other 
party  gone  into  the  actual  possession,  under  a  claim  of  right, 
before  the  20  years  had  expired,  there  might  be  good  ground  for 
holding  that  the  complainants  were  not  entitled  to  invoke  the 
statute  of  limitations,  but  such  was  not  the  case.  Moreover,  the 
owner  of  the  title  lived  until  1880,  and  while  he  knew  that  the 
Stricklands  were  in  the  possession  of  the  land  claiming  to  own 
it,  he  never,  so  far  as  appears,  set  up  any  claim  to  the  land,  nor 
did  his  heirs  set  up  any  claim  after  his  death.  On  the  other 
hand,  the  Stricklands  were  allowed  to  hold  the  possession  of  the 
land  for  over  20  years  without  objection  from  any  quarter. 
Under  the  facts,  we  think  it  is  plain  that  the  decree  of  the  court 
in  favor  of  the  Stricklands  was  correct. 

It  has  been  suggested  in  the  argument  that  Strickland  entered 
under  a  contract  of  purchase  from  Newman,  and,  having  entered 
under  that  title,  his  possession  was  not  adverse.  A  sufficient 
answer  to  this  position  is  that  the  record  fails  to  show  contract, 
of  any  description,  ever  made  or  entered  into  between  Newman 
and  Strickland,  in  regard  to  the  sale  or  purchase  of  this  land. 
No  writing  was  produced,  nor  was  it  proven  that  one  ever  existed. 
Moreover,  the  evidence  fails  to  show  even  a  verbal  contract  for 
the  sale  of  the  land  from  Newman  to  Strickland.  Some  loose 
declarations  of  the  widow  were  proven,  but  they  do  not  make 
out  a  contract.     But,  if  they  did,  the  declarations  of  the  widow 


570  TITLE    IIY    OUIGINAL    ACQUISITION. 

could  not  be  hold  as  binding  on  the  heirs  of  Strickland.  After 
a  careful  examination  of  the  entire  record,  we  think  (ho  decree 
of  the  circuit  court  correct,  and  it  will  be  affirmed.     Affirmed. 


Taking  of  Adverse  Possession  by  Successive  disseisors  to 
Malce  up  the  Statutory  Period  of  Continuous  Adverse 
Possession. 

Filsom  V.  Simshauser,  130111.  649;  22  N.  E.  835. 

Baker,  J.  This  was  ejectment  against  the  appellants,  Mat- 
thew Falcon  and  Thomas  F.  Tipton.  The  premises  in  contro- 
versy were  a  strip  of  ground  beginning  at  the  southwest  corner 
of  lot  1,  in  White's  addition  to  the  town,  now  city,  of  Blooming- 
ton,  and  running  thence  north  to  the  north  line  of  said  lot ; 
thence  west  29  feet;  thence  south  to  the  north  line  of  Grove 
street;  and  thence  east  29  feet  to  the  place  of  beo-inninu.  The 
appellant  Tipton  exhibited  at  the  trial  a  title  in  himself,  through 
mesne  conveyance,  from  the  government  of  the  United  States. 
The  important  matter  in  controversy  is  whether  his  right  of 
possession  has  been  barred,  in  respect  to  the  rights  of  appellees, 
by  the  operation  of  the  statute  of  limitations,  which  tolls  after  20 
years  of  adverse  possession,  the  right  of  action  for  the  recovery 
of  lands  and  the  right  to  make  an  entry  thereon.  Lot  6,  in  Grid- 
ley's  addition  to  Bloomington,  lies  west  of  lot  1,  in  White's  addi- 
tion to  Bloomington,  and  this  stri|)  of  ground  now  in  question, 
29  feet  wide,  lies  between  them.  In  1852  one  Jesse  Adams  was 
in  possession,  under  paramount  title,  of  the  east  half  of  lot  6,  of 
56  feet  off  of  the  west  side  of  lot  1,  and  of  the  strip  of  29  feet, 
and  fenced  all  these  pieces  of  land  in  one  inclosure,  and  erected 
a  brick  house  on  the  strip  in  dis[)ute  ;  that  being  about  the  cen- 
ter of  the  combined  premises.  He  remained  in  possession  until 
September  7,  1858,  when  he  executed  a  deed  to  Allen  Withers, 
in  which  the  premises  conveyed  were  described  as  the  east  half  of 
lot  6,  in  Gridley's  addition,  and  56  feet  off  of  the  west  side  of  lot 
1,  in  While's  addition,  and  put  said  Withers  in  possession  of  the 
house,  and  of  the  whole  of  the  premises.  Withers  retained  pos- 
session of  the  entire  inclosure,  occupying  it  by  his  tenants,  and 
claiming  to  be  the  owner  of  it  all  until  his  death,  in  1864.  He 
left  a  will  by  which  he  devised  his  whole  estate  to  his  wife, 
Sarah  B.  Withers.  Mrs.  Withers  occupied  the  entire  premises 
by  her  tenants,  she  claiming  to  be  the  owner  of  the  same  until 
August  8,  1871,  when  she  conveyed  by  deed  to  '*  Hanna  Sims- 
hauser and  her  children,  *  *  *  and  their  heirs  and  assigns." 
This  deed  also  described  the  premises  conveyed  as  the  east  half 


ADVERSE    POSSESSION    BY    SUCCESSIVE    DISSKISOUS.  571 

of  lot  6,  in  Gridley's  addition,  ;ind  56  feet  off  of  the  west  side 
of  lot  1,  in  White's  addition.  Mrs.  Withers  put  her  grantees 
into  possession.  Mrs.  Withers  states  in  her  testimony  that  the 
house  and  premises  were  occupied  by  a  tenant  when  she  made 
the  deed;  that  she  turned  over  the  lease  to  Mrs.  Simshauser  ; 
that  the  latter  collected  rent  from  the  tenant  therein;  that  Mrs. 
Simshauser  rented  the  place  for  two  or  three  years,  until  the 
house  was  torn  down,  and  that  the  Simshauseis  then  rented  the 
land  for  a  garden,  or  something  of  that  kind;  that  Mr.  Funk 
had  a  garden  there,  and  jniid  the  taxes. 

It  seems,  from  the  evidence,  that  the  house  having  become 
somewhat  dilapidated,  Philip  Simshauser,  husband  of  Hannah 
Simshauser,  had  it  torn  down  about  1874.  The  husband  in  his 
testimony,  in  response  to  a  question  as  to  what  his  wife  and  chil- 
dren did  with  the  house  after  Mis.  Withers  deeded  it  to  them, 
answered:  "We  had  it  about  two  years,  and  we  had  so  much 
bother  about  tenants  paying  the  rent,  and  it  wanted  fixing  up, 
so,  after  we  looked  it  over,  I  tore  it  down."  He  also  states 
that  after  the  house  was  torn  down  his  boys  took  the  matter  out 
of  his  hands,  and  had  the  premises  rented  for  a  garden ; 
and  that  nc^body  except  them  (the  Simshausers)  were  in 
possession  of  or  made  any  claim  to  the  premises,  until  the 
claim  made  by  appellant  Faloon,  in  1885.  We  think  it  evident, 
from  this  testimony,  that  whatever  possession  Philip  may 
have  had  or  authority  he  may  have  exercised  in  respect  to 
the  house,  and  the  land  connected  therewith,  was  merely  in 
behalf  of  his  wife  and  children,  and  in  assertion  of  their  claims 
of  title  and  in  conformity  with  their  relative  interests  as  sup- 
posed to  be  fixed  by  the  deed  they  held,  and  in  no  sense  under 
claim  of  a  personal  and  individual  right  in  himself.  It  is  also 
manifest  that  the  consecutive  possessions  of  the  strip  of  ground 
20  feet  wide,  held  by  Mr.  Withers,  Mrs.  Withers,  and  the 
grantees,  in  the  conveyance  of  August  8,  1871,  were  supposed 
to  be  under  and  by  virtue  of  the  deeds  made  by  Adams  and  by 
Mrs.  Withers,  respectively. 

Appellant  Ti[)ton's  title  is  derived  through  a  quitclaim  deed  for 
the  2H  feet,  dated  October  4,  1876,  made  by  Jesse  Adams  to 
appellant  Faloon,  and  a  warranty  deed  from  Faloon  to  himself, 
dated  April  15,  1887.  A  possession  of  land,  in  order  to  be  ad- 
verse, need  not  be  under  any  muniment  of  title.  Adverse  pos- 
session is  a  possession  inconsistent  with  the  right  of  the  true 
owner,  and  depends  upon  the  intention  with  which  it  is  taken  and 
held  ;  and  an  actual  occupancy  of  laud  by  one,  accomi)anied  by 
acts  of  ownership  inconsistent  with  the  fact  of  ownership  in 
another,  is  presumptively  adverse  possession.     The  possession 


57  2  TITLE    BY    ORIGINAL    ACQUISITION. 

of  Allen  Withers,  and  that  of  his  devisee,  Sarah  B.  Withers, 
were  very  plaiuly  adverse,  in  respect  to  the  29  feet,  to  the  title 
of  Jesse  Adams,  under  which  appellants  claim,  and  these 
possessions  continued  from  September  7,  1858,  to  August 
8,  1871,  —  a  period  of  12  years  and  11  months.  So,  also, 
the  possession  of  ai)pelleos,  under  their  deed  from  Mrs. 
Withers,  was  manirestly  adverse  to  the  title  of  which  appellants 
seek  to  avail  themselves  ;  and  it  extended  from  August  8,  1871, 
until  some  time  in  the  year  1885, — a  period  of  ahnost  or  quite 
14  years.  It  is  not  essential  there  should  be  i)roof  of  oral 
declarations  of  cUiim  of  title  made  by  appellees,  but  it  is  suffi- 
cient if  it  appears  they  so  acted  as  to  clearly  indicate  that  they 
did  claim  title.  James  v.  Railroad  Co.,  91  111.  554.  It  follows 
that,  if  these  possessions  can  bo  tacked  together,  there  is  an 
adverse  possession  shown  in  this  case  of  some  27  years,  and  the 
bar  of  the  statute  against  the  title  of  appellants,  even  though  it 
be  the  true  title,  is  complete  and  became  absolute  in  September, 
1878. 

Appellant  urges,  however,  that  where  several  persons,  without 
privity  of  estate,  successively  enter  on  land  as  disseisors,  their 
several  possession  cannot  be  tacked  so  as  to  make  a  continuity 
of  disseisins,  and  that,  in  order  to  give  a  right  to  the  bar  under 
the  statute  of  limitations,  a  party  seeking  to  avail  of  such  right 
must  show  privity  of  estate  with  the  prior  disseisors  by  purchase 
and  conveyance  of  disseisin.  It  is  a  sufficient  answer  to  this  claim, 
and  to  the  authorities  cited,  to  show  it  is  essential  to  establish 
by  a  deed  that  appellees  are  connected  with  the  adverse  posses- 
sions of  Allen  and  Sarah  B.  Withers,  to  say  that  the  question  is  not 
an  open  one  in  this  State,  and  that  the  rule  having  been  years  ago 
determined  otherwise  by  this  court,  and  it  being  a  rule  of  property 
upon  which  many  titles  may  depend,  such  ruling  will  be  adhered 
to  without  any  re-examination  of  the  conflicting  authorities  in 
respect  thereto.  In  Weber  v.  Anderson,  73  III.  439,  it  was  held 
that  a  deed  is  not  necessary  to  transfer  the  possession  of  land 
held  adversely  to  the  owner,  and  that  where  land  is  held  adversely 
by  different  occupants,  and  one  succeeds  to  the  possession  of 
another,  the  identity  and  continuity  of  their  possession,  in  order 
to  make  the  period  required  to  bar  the  owner,  may  be  shown  by 
parol  evidence.  See,  also,  Schneiders.  Botsch,  90  111.  577,  and 
other  cases  there  cited. 

Appellant  Tipton  further  insists  that  he  is  an  innocent  pur- 
chaser for  value  from  a  person  in  possession  having  the  lethal 
title  of  record,  and  should  be  protected  as  such.      Waivinir  the 
contention  made  by  appellees  that  this   claim  is   wholly   uTisus- 
ained  by  the  facts,  it  would  seem  that,  even  if  it  has  a  sufficient 


ADVERSE   POSSESSION    BY   SUCCESSIVE    DISSEISORS.  573 

basis  in  the  evidence,  yet  it  cannot  here  prevail.  While  the 
!^tatute  of  limitations  does  not  have  the  effect  to  transfer  the 
title  of  the  true  owner,  it  does  transfer  his  right  of  possession 
to  the  party  in  adverse  possession  for  the  required  })eriod.  In 
Hinchman  v.  Whetstone,  23  111.  185,  this  court  said  ;  "  Where 
the  statute  has  tolled  both  the  right  of  entry  and  the  right  of 
action,  the  remedy  of  the  owner  is  gone,  and  he  is  precluded 
from  asserting  his  right,  or  setting  up  his  title  against  the 
party  relying  upon  the  statutory  bar."  And  further  said: 
•'  As  against  such  occupant,  and  those  claiming  under  him,  he 
CMU  neither  use  his  title  for  tlie  purpose  of  recovery  or  defense, 
until  he  shall  have  destroyed  the  bar  by  purchase,  limitation, 
or  some  other  mode  equally  effectunl."  When  both  the  right 
of  entry  and  the  right  of  action  are  lost,  then  by  operation  of 
the  statute  the  party  in  adverse  possession  is  conclusively  pre- 
sumed to  be  the  owner,  and  to  be  vested  with  title,  and  such 
title  cannot  be  cut  off  and  destroyed  by  the  act  of  the  holder  of 
the  former  title  in  regaining  possession  by  the  commission  of  a 
tort,  and,  while  so  in  tortious  possession,  conveying  to  a  third 
party  who  had  no  notice  of  the  adverse  title,  the  holder  of 
which  has  been  wrongfully  and  temporardy  dispossessed.  The 
right  of  possession  which  once  was  in  the  former  owner  having 
been  transferred  by  the  statute  to  the  new  and  adverse  owner, 
such  former  owner  is  powerless  to  convey  to  the  purchaser  from 
him  a  right  of  possession  which  he  himself  does  not  have.  The 
appellant  Faloon  took  possession  after  the  rendition  of  judgment 
in  the  first  ejectment  suit,  hereafter  mentioned,  but  he  was  not 
put  in  possession  by  any  writ  of  possession  issued  upon  such 
judgment.  In  Riverside  Co.  v.  Townsend,  120  III.  9;  9  N.  E. 
Rep.  65,  this  court  held  that  when  a  plaintiff  in  ejectment  shows 
an  adverse  possession  for  20  years,  so  that  the  entry  is  barred, 
he  is  entitled  to  recover  even  against  a  defendant  whose  posses- 
sion for  a  less  period,  is  lawful;  and  quoted  with  approval  the 
language  from  Aug.  Lim.,  §  381,  that  "it  is  also  unquestionable 
that,  where  land  has  been  held  under  a  claim  to  the  fee,  for  the 
time  prescribed  by  the  statute,  and  an  entry  is  made  by  the  party 
who  has  the  written  title,  such  party  may  be  dispossessed,  by  an 
ejectment  brought  by  him  who  has  so  held  and  claimed." 

The  declaration  filed  in  this  case  contains  10  counts.  In  the 
first  count  Hannah  Simshauser,  Philip  Simshauser,  Allen  W. 
Simshauser,  Lawrence  Simshauser,  Benjamin  F.  Simshauser, 
Peter  B.  Simshauser,  Mary  Belle  Simshauser,  Sarah  W.  Sims- 
hauser, and  Henrietta  Simshauser  claim  the  whole  of  the  prem- 
ises in  fee.  In  the  second  count  Hannah  Simshauser  claims  an 
undivided  one-eighth  part  of  said  premises  ;  and  in  the   third, 


» 
574  TITLK    BY    OUIOINAL    ACQUISITION. 

fourth,  fifth,  sixth,  seventh,  eighth,  ninth,  and  tenth  counts, 
respectively,  AlU-n  W.,  Lawrence,  Benjamin  F.,  Peter  P.,  Mary 
Belle,  Sarah  W.,  Henrietta,  and  Clarence  Sinishaiiser,  each, 
respectively,  claims  an  undivided  one-eighth  pai  t  of  said  prem- 
ises. It  seems  from  the  evidence  that  in  1885  the  ai)pellant 
Faloon  commenced  ejectment  for  the  recovery  of  the  premises 
ill  dispute  again»t  one  Funk,  who  had  rented  them  from  Benja- 
min F.  Simshauser,  and  said  Fuidi  gave  due  notice  to  said  Ben- 
jamin F.  of  the  suit,  and  in  the  suit  Faloon  obtained  judgment 
by  default.  In  the  present  suit,  which  was  tried  before  the 
court  without  a  jury,  the  court  held  that  Benjamin  F.  Sims- 
hauser was  barred  by  the  judgment  in  the  first  ejectment,  and 
as  to  him  the  judgment  was  that  he  take  nothing  by  the  suit. 
But  the  court  found  the  issues  for  the  plaintiffs  Hannah,  Allen 
W.,  Lawrence,  Peter  P.,  Mary  Belle,  Sarah  W.,  and  Clarence 
Simshauser,  and  that  each  of  said  last-named  plaintiffs  was  the 
owner  in  fee-simple  of  an  undivided  one-eighth  part  of  the 
premises,  and  rendered  judgment  that  each  of  them  **  do  each 
severally  recover  *  *  *  j^n  undivided  one-eighth  of  the 
above-described  premises,"  etc. 

It  is  strenuously  urged  the  judgment  in  favor  of  Clarence 
Simshauser  for  an  undivided  one-eighth  of  the  land  is  erroneous, 
and  such  contention  is  undoubtedly  well  founded.  The  deed 
from  Mrs,  Withers  was,  as  we  have  heretofore  seen,  to  Hannah 
Simshauser  and  her  children.  While  it  is  necessary  that  all  the 
grantees  should  be  sufficiently  described  in  a  deed,  yet  that  rule 
does  not  require  such  parties  should  be  designated  by  the  usual 
method  of  giving  their  names  in  full,  and  any  other  description 
will  suffice  which  distinguishes  them  from  all  others,  as  where 
one  is  described  by  his  office  or  by  his  relation  to  other  persons. 
5  Amer.  &  Eng.  Cyclop,  Law,  432,  and  authorities  cited  in 
notes;  Cook  v.  Sinnamon,  47  III.  214;  Low  v.  Graff,  80  111. 
360.  In  this  case  Mrs.  Withers  and  her  children  living  at  the 
time  the  deed  was  executed  and  delivered  took  as  tenants  in 
common.  Wilds  Case,  6  Coke,  17;  Parkman  v.  Bowdoin,  1 
Sum.  366;   2  Jarm.  Wills,  224. 

The  evidence  of  Philip  Simshauser  shows  that  the  seven  chil- 
dren of  himself  and  wife  living  at  the  time  Mrs.  Withers  made 
the  deed  were  Allen  W.,  Lawrence,  Peter  P.,  Mary  Belle,  Sarah 
W.,  Henrietta,  and  Benjamin  F.  The  evidence  of  Mrs.  Withers 
is  to  the  same  effect,  and  it  clearly  appears  from  her  testimony 
that  Clarence  was  born  about  three  years  thereafter.  Of  course 
Clarence  did  not  take  by  the  deed.  In  case  of  a  grant  of  an 
immediate  estate  in  possession,  the  grantee  must  be  in  esse,  and 
a  deed  of  that  kind  may  be  avoided  by  showing  the  grantee  came 


ESTOPPEL,  BY   DEED.  575 

into  being  subsequent  to  the  delivery  of  the  deed.  Hulick  v. 
Scovil,  4Gihiitin,  159;  Miller  v.  Chittenden,  2  Iowa,  368;  Tied. 
Real  Piop.,  §  797.  The  finding  and  judgment  of  the  court  in 
favor  of  Clarence  Simshauser  for  an  undivided  one-eighth  part 
of  the  premises  was  clearly  erroneous.  Section  27  of  the  eject- 
ment act  (Rev.  St.  1874,  c.  45,  §  27)  provides  "  it  shall  not  be  an 
objection  to  a  recovery  in  any  action  of  ejectment  that  any  one 
of  several  plaintiffs  do  not  prove  any  interest  in  the  premises 
claimed,  but  those  entitled  shall  have  judgment,  according  to 
their  rights,  for  the  whole  or  such  part  or  portion  as  he  or 
they  might  have  recovered,  if  he  or  they  had  sued  in  his 
or  their  name  or  names  only."  And  it  is  provided  in  the 
second  and  sixth  clause  of  section  30  of  the  same  act  that  if 
it  appears  that  one  or  more  of  the  plaintiffs  have  a  right  to 
the  possession,  and  that  one  or  move  have  not  such  right,  the 
verdict  shall  specify  for  which  plaintiff  the  jury  find,  and 
as  to  which  plaintiff  they  find  for  the  defendant;  and  that, 
if  the  verdict  be  for  an  undivided  share  or  interest  in  the 
premises  claimed,  it  shall  specify  such  share  or  interest.  In  this 
case  there  is  no  cross-error  assigned  by  Henrietta  Simshauser, 
because  there  was  no  finding  and  judgment  in  her  fuvor  for  an 
undivided  one-eighth  of  the  land.  It  is  not  perceived  that  there 
is  any  occasion  for  reversing  the  entire  judgment  and  remanding 
the  cause.  The  findings  and  judgments  in  respect  to  the  inter- 
ests of  the  several  appellees  were  several  and  distinct.  The 
judgment  in  favor  of  Clarence  Simshauser  being  erroneous,  and 
he  having  no  right  or  title  in  the  premises,  is  reversed.  The 
judgments  in  favor  of  Hannah  Simshauser,  Allen  W.  Simshauser, 
Lawrence  Simshauser,  Peter  P.  Simshauser,  Mary  Belle  Sim- 
shauser, and  Sarah  W.  Simshauser  are  affirmed.  It  is  ordered 
that  six-sevenths  of  the  costs  of  this  appeal  be  taxed  to  appel- 
lants, and  one-seventh  of  such  costs  be  taxed  to  Clarence  Sim- 
shauser.    Affirmed  in  part,  and  reversed  in  part. 


Estoppel   by   Deed. 

Pike  V.  Galvin,  29  Me.  183. 

Shepley,  J.  The  title  of  both  parties  to  the  demanded  premi- 
ses is  derived  from  Artemas  Ward,  who  by  his  agent  Robbins 
made  a  contract  in  writing,  on  October  26,  1820,  to  convey  a 
tract  of  land  including  the  premises  to  Theodore  Jellison  upon 
the  performance  of  certain  conditions  therein  stated.  Jellison 
appears  to  have  entered  into  possession,  but  does  not  appear  to 
have  performed   the   conditions.     On   July    7,     1823,    Jellison 


5  76  TITLE    BV    oUIOINAIi    ACQUISITION. 

assigned  that  contract  to  the  demandant,  and  on  the  same  day 
made  a  deed  of  release,  purporting  to  convey  the  saiue  tract  of 
hind  to  the  demandant.  Artemas  Ward  on  October  27,  1825, 
by  a  deed  containing  covenants  of  warranty,  conveyed  a  hirger 
tract  of  land  including  the  tract  before  named,  to  Jones  Dyer, 
Jr.,  who,  on  July  11,  1829,  conveyed  to  Theodore  Jelliaon  the 
tract  of  laud  described  in  his  deed  to  the  deuumdant.  Jellison, 
on  May  9,  1833,  conveyed  the  premises  demanded  to  Stephen 
Emerson.  These  conveyances  were  all  duly  recorded.  The 
defendant  is  the  tenant  of  Joseph  Wyeth  and  Stephen  G.  Bass, 
who  have  exhibited  a  title  derived  from  Stephen  Emerson.  The 
demandant  has  never  been  in  possession  of  the  land  described  in 
his  deed  from  Jellison,  but  Jellison  and  those  claiming  title  from 
Ward  through  Jellison  have  always  been  in  possession. 

As  Jellison  had  no  title  when  he  made  his  deed  on  July  7, 
1823,  the  demandant  can  have  none,  unless  that  acquired  by 
Jellison  on  July  11,  1829,  inured  to  him. 

The  deed  from  Jellison  to  the  defendant  contains  no  cove- 
nants but  the  fcMJowing,  "  so  that  neither  I,  the  said  Jellison, 
nor  my  heirs,  or  any  other  person  or  persons  claiming  from  or 
under  me  or  them,  or  in  the  name,  right,  or  stead  of  me  or  them, 
shall  or  will  by  any  way  or  means  have,  claim,  or  demand  any 
right  or  title  to  the  aforesaid  premises  or  to  any  part  or  parcel 
thereof  forever." 

Without  entering  upon  a  discussion  of  the  doctrine  or  the 
different  aspects  of  it  presented  in  the  very  numerous  cases, 
which  have  been  decided  respecting  the  effect  of  covenants 
contained  in  a  conveyance  of  land,  to  transfer  to  the  vendee  by 
inurement,  estoppel,  or  otherwise,  a  title  subsequently  acquired, 
it  will  be  sufficient  for  the  present  purpose,  to  state  a  couple  of 
positions,  which  appear  to  have  been  asserted  or  admitted  in 
many  of  them. 

1.  When  one  has  made  a  conveyance  of  land  by  a  deed  con- 
taining a  covenant  of  warranty,  a  title  subsequently  acquired 
will  be  transferred  to  the  vendee,  or  the  vendor  and  those  claim- 
ing under  him  will  be  estopped  to  deny  it. 

Such  is  the  doctrine  in  this  State:  White  v.  Erskine,  1  Fairf. 
306  ;  Lawry  v.  Williams,  13  Maine  R.  281;  Baxter  v.  Bradbury, 
20  Maine  R.  260. 

In  New  Hampshire:   Kimball  v.  Blaisdell,  5  N.  H.  R.  533. 

In  Vermont:  Middlebury  College  v.  Cheney,  1  Vermont  R. 
336. 

In  Massachusetts:  Somes  v.  Skinner,  3  Pick.  32;  White  v. 
Patten,  24  Pick.  324. 

In  New  York:   Jackson  v.  Matsdorf,  11  Johns.  R.  91;    Jack- 


ESTOPPEL    BY    DEED.  577 

son  V.  Bradford,  4  Wend.  619  ;  Pelletreau  v.  Jackson,  \l  Wend. 
110. 

In  Ohio:  Hill  v.  West,  8  Ham.  222. 

In  the  Courts  of  the  Unite<l  States:  Terrett  v.  Taylor,  9 
Craneh,  23;  Mason  v.  Muncaster,  9  Wheat.  458;  Stoddard  v. 
Gibbs,  1  Sum.  2(53. 

Against  these  and  other  decisions  to  the  same  effect  it  has 
been  contended,  that  "  the  old  common-law  warranty  has  no 
practical  operation  under  the  system  of  conveyancing  employed 
in  this  country,  except  in  the  single  case  of  release  with  war- 
ranty, to  a  party  in  adverse  seisin  of  an  estate,  and  of  a  subse- 
quent descent  of  the  right  of  entry  or  action  to  the  warrantor." 
And  that  "  the  doctrine  of  estoppel  in  deeds  cannot  be  based 
upon  that  of  warranty."  Doe  v.  Oliver,  Smith's  L.  C.  460,  in 
note.  If  the  question  could  be  considered  as  open  to  discussion, 
it  might  be  worthy  of  deliberate  consideration.  But  it  would 
seem  to  be  too  late  to  entertain  it. 

2.  Where  one  has  made  a  conveyance  of  land  by  deed  con- 
taining no  covenant  of  warranty,  an  after-acquired  title  will  not 
inure  or  be  transferred  to  the  vendee;  nor  will  the  vendor  be 
estopped  to  set  up  his  title  subsequently  acquired,  unless  by 
doing  so  he  be  obliged  to  deny  or  contradict  some  fact  alleged 
in  his  former  conveyance. 

There  is  an  irreconcilable  difference  in  the  decided  cases  re- 
specting this  proposition.  It  is  believed,  however,  to  be  fully 
established  by  the  better  considered  opinions ;  and  to  be  in 
accordance  with  well-established  principles. 

It  is  sustained  in  this  State  by  the  cases  of  Allen  v.  Sayward, 
5  Greenl.  227,  and  Ham  v.  Ham,  14  Maine  R.  351,  and  opposed 
by  the  case  of  Fairbanks  v.  Williamson,  7  Greenl.  96. 

In  New  Hampshire  it  is  sustained  by  the  case  of  Kimball  v. 
Blaisdell,  5  N.  H.  R.  533. 

In  Massachusetts  it  is  sustained  by  the  cases  of  Somes  v. 
Skinner,  3  Pick,  61;  Blanchard  v.  Brooks,  12  Pick.  47;  Com- 
stock  V.  Smith,  13  Pick.  116,  and  opposed  by  the  case  of  Trull 
V.  Eastman,  3  Mete.  121. 

In  Connecticut  it  is  sustained  by  the  case  of  Dart  v.  Dart,  7 
Conn.  R.  250. 

In  New  York  it  is  sustained  by  the  cases  of  Jackson  v.  Wright, 
14  Johns.  R.  193;  Jackson  v.  Bradford,  4  Wend.  619;  Pelle- 
treau V.  Jackson,  11  Wend.  110;  Jackson  v.  Waldron,  13  Wend. 
178.  And  it  may  be  considered  as  opposed  by  the  cases  of  Jack- 
son V.  Bull,  1  John.  Cas.  81,  and  Jackson  v.  Murray,  12  Johns. 
201.  If  they  be  so  considered,  they  were  overruled  by  the  case 
of  Pelletreau  v.  Jackson. 

37 


578  TITLE    BY    ORIGINAL    ACQUISITION. 

In  Ohio  it  is  sustained  by  the  case  of  Kinsman  v.  Loomis,  11 
Ohio,  475. 

The  only  suitable  inquiry  to  be  ontoitained  in  this  Stale  is, 
whether  our  own  case  of  Fairl)anks  v.  Williamson,  although 
the  doctrine  asserted  in  it  may  have  been  approved  eslewhere, 
as  well  as  in  the  case  of  White  v.  Erskine,  can  upon  sound 
principles  be  sustained.  The  deed  in  that  case  contained  no 
covenant  but  that  of  non-claim.  The  ground  upon  which  it  was 
decided,  that  a  title  subsequently  acquired  inuied  to  the 
vendee,  appears  to  have  been,  that  the  covenant  of  non-claim 
was  "  a  covenant  real,  which  runs  with  the  land  and  estops 
the  grantor  and  his  heirs  to  make  claim,  or  set  up  any  title 
thereto." 

Covenants,  which  relate  to  the  land,  are  said  to  run  with  the 
land.  Sale  v.  Kitchingham,  10  Mod.  158;  Norman  v.  Wells, 
17  Wend.  136.  But  a  covenant  which  may  run  with  the  land, 
can  do  so  only  when  the  land  is  conveyed.  It  can  only  run, 
when  attached  to  the  land,  as  its  vehicle  of  conveyance.  Spen- 
cer's Case,  5  Coke,  17  b;  Lucy  v.  Livingston,  2  Lev.  26;  Lewes 
V.  Ridge,  Cro.  Eliz.  863  ;  Bickfoid  v.  Page,  2  Mass.  460;  Slater 
V.  Rawson,  1  Mete.  45(5 ;  White  v.  Whitney,  3  Mete.  81 ;  Clark  v. 
Swift,  3  Mete.  390;  Chase  v.  Weston,  12  N.  H.  413;  Garfield 
V.  Williams,  2  Veim.  327;  Beardsley  v.  Knight,  4  Verm.  471; 
Mitchell  V.  Warner,  5  Conn.  497  ;  Kane  v.  Sanger,  14  Johns. 
89;  Beddoe  v.  Wadsworth,  21  Wend.  120;  Garrison  v.  Sand- 
ford,  7  Halst.  261  ;  Randolph  v.  Kinnev,  3  Rand.  394;  Backus 
V.  McCoy,  3  Ham.  211;  Allen  v.  Wooley,  1  Blackf.  139.  The 
cases  of  Kingdom  v.  Nottle,  1  M.  &.  S.  353,  and  4  M.  &  S.  53, 
are  denied  to  have  been  correctly  decided  in  Mitchell  v.  War- 
ner, 5  Conn.  497,  and  in  Clark  v.  Swift,  3  Mete.  390.  Kent, 
also  in  speaking  of  covenants,  which  run  with  the  land,  says, 
"  they  cannot  be  separated  from  the  land  and  transferred  with- 
out it,  but  they  go  with  the  land,  as  being  annexed  to  the  estate  ;  " 
4  Kent's  Com.  472,  note  b. 

Admitting  the  covenant  in  the  deed,  alluded  to  in  Fairbanks 
V.  Williamson  to  be  a  covenant  that  might  run  with  the  land,  it 
could  not  run  or  be  transferred  by  law,  to  the  assignee  of  tlie 
grantee,  so  as  to  enable  him  to  derive  any  benefit  from  it.  Nor 
could  it  operate  in  his  favor  by  way  of  estoppel  to  prevent  cir- 
cuity of  action,  for  he  could  maintain  no  action  on  that  coveniint. 
Nor  could  it  so  operate  in  any  other  mode,  unless  there  had 
been  found  some  allegation  in  the  deed,  by  which  the  releasor 
had  asserted  some  matter  to  be  true,  which  he  must  necessarily 
contradict  and  deny  to  have  been  true,  if  he  would  claim  to  be 
the  owner  of  the  land.     In  such  case  he  would  have  been  estopped , 


REGAINING   TITLK    BY    ADVERSE   POSSESSION.  579 

because  the  law  will  not  permit  one,  who  has  in  8uch  a  solemn 
manner  adtiiitted  a  matter  to  be  true,  to  allege  it  to  be  false. 
"This,"  says  Kent,  ♦'  is  the  reason  of  the  doctrine  of  estof)|)els  :  " 
4  Kent's  Com.  2G1,  note  d  ;  where  he  also  says,  "  a  release  or 
other  deed,  when  the  releasor  or  grantor  has  no  right  at  the  time, 
passes  nothing,  and  will  not  carry  a  title,  subsequently  acquired, 
unless  it  contains  a  clause  of  warranty  ;  and  then  it  operates  by 
way  of  estoppel,  and  not  otherwise."  The  covenant  of  non- 
claim  asserts  nothing  respecting  the  past  or  present.  It  is  only 
an  engagement  respecting  future  conduct. 

One  who  acquires  no  title  by  a  release  without  covenants 
respecting  the  title,  cannot  recover  back  the  purcha>e-money 
which  he  paid  for  it.  Emerson  v.  The  County  of  Washington, 
9  Greenl.  88.  To  permit  him  to  acquiie  a  title  subsequently 
purchased  by  his  releasor,  would  often  enable  him  to  obtain  in 
another  and  less  direct  mode  property  of  more  value  than  the 
purchase-money. 

The  conclusion  is  that  the  doctrine  asserted  in  the  case  of 
Fairbanks  v.  Williamson  cannot,  upon  sound  principles,  be  ad- 
mitted, and  that  the  decided  cases  in  this  and  other  States  are 
opposed  to  it. 

When  JoUison  made  his  deed  of  release  to  the  demandant,  he 
was  in  possession  in  submission  to  the  title  of  Ward,  and  was  but 
a  tenant  at  will  to  him.  Not  being  seised  of  a  fee  simple  he 
could  not  convey  it.  The  demandant  must  have  known,  when 
he  received  the  deed,  that  Jellisou  had  no  title  and  could  convey 
none,  for  he,  at  the  same  time,  took  an  assignment  of  Jellison's 
contract,  to  purchase  that  land  of  Ward.  He  subsequently  acted 
as  an  appraiser  to  nuike  a  levy  and  to  pass  the  title  to  a  part  of 
that  land,  from  a  grantee  of  Jellison  to  a  creditor  of  that 
grantee.  There  is  no  allegation  in  the  deed  of  Jellison  to  the 
demandant  respecting  the  title,  which  it  would  be  necessary  for 
Jellison  or  his  grantee  to  deny  or  contradict  by  setting  up  a  title 
subsequently  acquired.     Demandant  non-suit. 


Grantor  May  Regain  Title  from  Grantee  by  Adverse 
Possession. 

Garibaldi  v.  Shattuck,  70  Cal.  511;  11  P.  778. 

Belcher,  C.  C.  This  an  action  to  quiet  title  to  certain  land 
in  Butte  County.  The  plaintiff  had  judgment  and  the  defendant 
ap[)ealed. 

It  appears  from  the  findings  that  on  thetwenty-sixth  day  of  Feb- 


5.S0  TITLK    HY    OUIGINAL    A<;QUISlTlON. 

riiary,  186(5,  one  RichiiKl  F.  Floyd  wus  in  possession  of  the  luiul 
ill  (iijesli«)ii  —  it  being  then  public  land  of  the  United  States  — 
and  on  that  day,  on  iiis  own  motion,  and  without  ctnisideration 
of  any  kind,  made  a  deed  purportinir  to  (tonv-^cy  it  in  fee  to  the 
defetuhint.  Tlio  deed  was  acknowledged  and  recordeil,  l»nt  the 
grantee  did  not  take  possession  under  it.  On  the  contrary,  Floyd 
remained  in  possession  ;  and  from  that  time  until  Ai)iil,  1885, 
he  held  the  actual,  open,  notorious,  exclusive,  peaceal)le,  and 
adverse  [)Ossession  of  the  premises,  and  of  every  part  thereof, 
claiming  tlie  same  in  his  own  right,  and  adversely  to  all  the  woild, 
and  especially  as  against  the  defendant.  In  May,  1881,  Floyd 
obtained  the  title  to  a  part  of  the  land  by  patent  from  the  United 
States,  and  in  June,  1885,  he  obtained  the  title  to  the  balance  of 
it  by  deed  from  the  Central  Pacific  Railroad  Company.  Floyd 
conveyed  the  land  to  the  plaintiff,  and  the  plaintiff  thereupon 
commenced  this  action. 

It  is  now  claimed  for  the  defendant,  appellant  here,  that  the 
titles  acquired  by  Floyd  in  1881  and  1885  immediately  passed  to 
and  vested  in  the  defendant  by  reason  of  his  deed  of  1866.  We 
do  not  think  that  this  claim  can  be  maintained.  There  can  be 
no  doubt  that  a  grantor,  even  with  a  covenant  of  warranty,  may, 
after  his  deed  is  delivered,  take  adverse  possession  of  the  prop- 
erty conveyed,  and  if  his  possession  is  allowed  to  continue  during 
the  period  prescribed  by  the  statute  of  limitations,  obtain  a  title 
as  against  his  grantee.  Franklin  v.  Dorland,  28  Cal.  180  ;  Sher- 
man V.  Kane,  86  N.  Y.  57;  Traip  v.  Traip,  57  Me.  268  ;  Smith 
V.  Montes,  11  Tex.  24. 

An  adverse  possession  of  land  for  the  period  of  time  prescribed 
by  the  statute  not  only  bars  the  remedy,  but  practically  extin- 
guishes the  right  of  the  party  having  the  true,  proper  title,  and 
vests  a  perfect  title  in  the  adverse  holder.  Arrington  v.  Liscom, 
34  Cal.  365;  Cannon  v.  Stockmon,  36  Cal.  535;  Leffingwell  v. 
Warren,  2  Black,  605. 

When  Floyd  obtained  his  title,  in  1881,  he  had  been  in  the 
adverse  possession  of  the  premises  for  15  years,  and  the  title, 
whatever  it  was,  conveyed  by  the  deed  of  1866,  was  extinguished. 
He  had  again,  as  against  all  the  world,  except  the  United  States, 
become  the  owner  of  the  property  as  completely  as  he  would 
have  been  if  the  defendant  had  conveyed  it  to  him.  But  if  the 
defendant  had  conveyed  it  to  him,  would  any  one  contend  that  the 
new  title  at  once  passed  to  the  defendant  notwithstanding  his 
deed?  We  think  not.  The  true  rule  is  that  an  after-acquired 
title  passes  to  a  prior  grantee  only  so  long  as  the  prior  grantee 
has  some  estate,  interest,  or  claim  in  or  to  the  property 
granted.     When  he  has  ceased  to  have  any  estate  in  the  prop- 


ABANDONMENT   OF   ADVERSE   POSSESSION.  "  581 

erty,  he  has  nothiug  to  be  fed  by  the  new  title,  and  so  cannot 
claim  it. 

Manley  v.  Hewlett,  55  Cal.  94,  is  not  in  conflict  with  what  has 
been  said.  In  that  case  plaintiff  sued  in  ejectment,  and  to 
establish  his  title  relied  upon  a  patent  issued  less  than  five  years 
before  the  commencement  of  his  action.  The  defendant  pleaded 
the  statute  of  limitations,  but  it  was  correctly  held  that  the 
statute  did  not  begin  to  run  until  the  issuance  of  the  patent. 

The  judgment  should  be  affirmed. 

We  concur:  Searls,  C;   Foote,  C. 

By  the  Court :  For  the  reasons  given  in  the  foregoing 
opinion  the  judgment  is  afiirmed. 


Abandonment  of  Adverse  Possession  After  the  Statutory  Pe- 
riod of  Limitation,  Does  Not  Transfer  Title  to  Disseisee. 

School  District  v.  Benson,  31  Me.  381. 

Wells,  J.  The  jury  were  instructed  that  if,  in  1847,  the 
agent  of  the  school  district,  at  the  request  of  the  defendants,  re- 
moved said  wood-house  where  it  now  is,  intending  to  relinquish 
and  give  up  the  land,  and  the  district  had  subsequently  ratified 
his  acts  by  their  conduct  or  otherwise,  of  which  they  were  the 
judges,  then  such  abandonment,  notwithstanding  the  district 
might  before  that  time  have  had  an  open,  adverse,  exclusive,  and 
notorious  possession  of  the  land,  or  some  part  of  it,  for  more 
than  twenty  years,  would  operate  an  abandonment  of  their  pos- 
session, and  a  surrender  of  their  claim  to  the  former  owners 
thereof,  and  the  plaintiffs  could  not  recover  the  said  land  in  this 
suit. 

It  is  true  that  a  mere  possession  of  land  of  itself  does  not 
necessarily  imply  a  claim  of  right.  The  tenant  may  hold  in  sub- 
jection to  the  lawful  owner,  not  intending  to  deny  his  right  or  to 
assert  a  dominion  over  the  fee.  But  the  terms  open,  notorious, 
adverse,  and  exclusive,  when  applied  to  the  mode  in  which 
one  holds  lands,  must  be  understood  as  indicating  a  claim 
of  right.  They  constitute  an  appropriate  definition  of  a  dis- 
sesin,  and  the  acts  which  they  describe  will  have  that  effect 
if  not  controlled  or  explained  by  other  testimony.  Little 
V.  Libby,  2  Greenl.  242  ;  The  Proprietors  of  Kennebec  Pur- 
chase V.  John  Springer,  4  Mass.  416.  An  adverse  possession 
entirely  excludes  the  idea  of  a  holding  by  consent. 

If  the  plaintiffs  have  held  the  premises  by  a  continued  dissesin 
for  twenty  years,  the  right  of  entry  by  the  defendants  is  taken 


582  TITI.K    BY    OKIGINAL   ACQUISITION. 

away,  and  any  action  by  them  to  recover  the  same,  is  barred  by 
limitation.     Stat.,  c.  147,  §  1. 

A  legal  title  is  equally  valid  when  once  acquired,  whether  it 
be  by  a  disseisin  or  by  deed,  it  vests  the  fee  simple  although 
the  modes  of  proof  when  adduced  to  establish  it  may  differ. 
Nor  is  a  judgment  at  law  necessary  to  perfect  a  title  by  dis- 
seisin any  more  than  one  by  deed.  In  either  case,  when  the 
title  is  in  controversy,  it  is  to  be  shown  by  legal  proofs,  and  a 
continued  disseisin  for  twenty  years  is  as  effectual  for  that 
purpose  as  a  deed  duly  executed.  The  title  is  created  by  the 
existence  of  the  facts,  and  not  by  the  exhibition  of  them  in 
evidence. 

An  open,  notorious,  exclusive,  and  adverse  possession  for 
twenty  years  would  operate  to  convey  a  cora[)lete  title  to  the 
plaintiffs,  as  much  so  as  any  written  conveyance.  And  such 
title  is  not  only  an  interest  in  the  land,  but  it  is  one  of  the 
highest  character,  the  absolute  dominion  over  it,  and  t^he 
appropriate  mode  of  conveying  it  is  by  deed. 

No  doubt  a  desseisor  may  abandon  the  land,  or  surrender  his 
possession  by  parol,  to  the  disseisee,  at  any  time  before  his  dis- 
seisin has  ripened  into  a  title,  and  thus  put  an  entire  end  to  his 
claim.  His  declarations  are  admissible  in  evidence  to  show  the 
character  of  his  seisin,  whether  he  holds  adversely  or  in  subordi- 
nation to  the  legal  title.  But  the  title  obtained  by  a  disseisin  so 
long  continued  as  to  take  away  the  right  or  entry,  and  bar  an 
action  for  the  land  by  limitation,  cannot  be  conveyed  by  a 
parol  abandonment  or  relinquishment,  it  must  be  transferred  by 
deed.  One  having  such  title  may  go  out  of  possession,  declar- 
ing he  abandons  it  to  the  former  owner,  and  intending  never 
again  to  make  any  claim  to  the  land,  and  so  may  the  person  who 
holds  an  undis[)uted  title  by  deed:  but  the  law  does  not 
preclude  them  from  reclaiming  what  they  have  abandoned  in  a 
manner  not  legally  binding  upon  them.  A  parol  conveyance 
of  lands,  creates  nothing  more  than  an  estate  or  lease  at  will. 
Stat.,  c.  91,  §  30. 

The  exceptions  are  sustained  and  a  new  trial  granted. 


Surrender     from     Unrecorded     Deeds     Transfers     Title    to 

Grantor. 

Happ.  V.  Happ.,  156  111.  183;  41  N.  E.39. 

Craig,  J.  This  was  a  proceeding  in  the  superior  court  of 
Cook  County,  brought  by  appellant,  Simon  J.  Happ,  under  the 
burnt-record  act,  to  establish  title  to  certain  premises  in  Cook 


SURRENDER  FROM   UNRECORDED   DEEDS  TRANSFERS    TITLE.      583 

County,  described  in  the  petition.  The  defendants  put  in  an 
answer,  and  also  filed  a  cross  petition,  praying  that  the  title  to 
the  premises  be  coiitirraed  in  them.  On  the  hearing,  upon  the 
pleadings  and  evidence  and  report  of  the  master  the  court  en- 
tered a  decree  in  favor  of  defendants  in  the  cross  petition,  to 
reverse  which  the  complainant  appealed. 

It  appears  from  the  record  that  John  Happ,  father  of  peti- 
tioner, was  originally  the  owner  in  fee  of  the  premises  in  con- 
troversy; that  he  claimed  title  thereto  by  mesne  conveyances 
from  the  government.  On  the  3d  day  of  September,  1856,  John 
Happ  and  his  wife,  Gertrude,  executed  a  deed,  which  purported 
to  convey  the  premises  to  Simon  J.  Happ,  the  petitioner,  who 
was  then  about  16  years  of  age.  Whether  this  deed  was  ever 
delivered  to  the  grantee  is  a  question  left  in  doubt  from  the  evi- 
dence. The  deed  was,  however,  never  placed  on  record.  In 
1858,  Simon  Happ  became  very  anxious  to  go  to  California,  and 
called  on  his  father  to  furnish  him  money  to  make  the  journey. 
After  much  persuasion  the  father  consented,  and  gave  the  young 
man  $300  in  gold.  It  is  churned  by  the  defendants  that  peti- 
tioner, upon  receiving  the  $300  from  his  father,  agreed  to  sur- 
render all  title  he  held  to  the  land  in  controversy,  and  in  pursu- 
ance of  this  agreement  the  deed  was  surrendered  and  canceled  ; 
while,  on  the  other  hand,  petitioner  claims  that  he  turned  over  a 
horse  and  wagon,  carpenter  tools,  some  cord  wood,  and  a  few 
pigs  for  the  money  advanced,  and  that  he  left  the  deed  in  the 
hands  of  his  mother  for  safe-keeping.  Upon  receiving  the 
money,  petitioner  went  to  California.  John  Happ  remained  in 
possession  of  the  laud  in  dispute  until  May  25,  1863,  when  he 
died.  Before  his  death  he  made  a  will,  in  which  he  devised  the 
premises  to  his  wife,  Gertrude.  The  will  having  been  probated, 
Gertrude  Happ  went  into  the  possession  of  the  premises,  and  con- 
tinued in  possession  until  August,  1876,  when  she  conveyed  a  por- 
tion of  the  premises  to  her  sons  John  and  Bertrom  Happ,  and  in 
September,  1877,  she  conveyed  the  remainder  to  Bertrom  Happ. 
These  grantees,  and  those  claiming  under  them,  have  held  the 
possession  of  the  premises  ever  since.  It  is  conceded  in  the 
argument  of  the  petitioner  that  he,  at  the  time  he  went  to  Cali- 
fornia, in  1858,  surrendered  to  his  father  his  interest  in  the 
premises,  although  no  deed  was  executed  by  him  reconveying 
to  his  father.  The  surrender  of  his  interest  and  return  of  the 
deed  to  him  would  be  sufficient  to  invest  the  father  with  an 
equitable  interest  in  the  premises,  and  preclude  a  recovery  by 
petitioner ;  and  this  seems  to  be  in  harmony  with  the  law  as  laid 
down  by  this  court  in  Sanford  v.  Finkle,  112  III.  146.  The  real 
question,  then,  in  controversy  between  the  parties  is  whether 


584  TITLE    BY    OIUGINAL    ACQUISITION. 

the  petitioner,  iu  1858,  received  from  his  father  $300,  and  in 
consideration  of  the  money  so  received  surrendered  his  deed  and 
claim  to  the  property. 

The  first  witness  who  testified  in  regard  to  the  arrangement 
botween  the  petitioner  and  his  father  was  John  Happ.  He  testi- 
fied that  he  was  present  when  the  deed  was  made ;  that  it  was 
retained  in  the  possession  of  the  grantor  for  the  reason,  he 
thought,  the  grantee  was  too  young  to  be  intrusted  with  the 
custody  of  a  deed.  Ho  further  testified  :  "  My  father  ke[)t  that 
deed  in  his  own  possession.  I  have  seen  it  different  times. 
I  saw  it  five  or  six  years  after  my  father  had  it  in  his 
l)ossession.  Simon  came  to  Chicago  to  learn  the  carpenter 
trade,  and  it  was  hard  times,  and  he  could  hardly  make 
enough  to  pay  his  board.  And  finally  there  were  a  lot  of 
young  fellows  going  to  California,  and  Simon  wanted  to  go,  and 
teased  father  a  coui)le  of  months  for  $300.  That  was  all 
the  money  my  father  had,  and  that  was  all  the  land  he  had.  And 
father  didn't  like  to  give  him  the  money,  because  he  was  too 
old  to  work;  but  he  didn't  give  up  till  father  gave  him  $300  in 
gold.  I  was  present  at  the  time,  and  father  then  said:  *  Now, 
Sam,  you  ain't  going  to  have  this  land  if  you  take  that  money. 
I  have  got  to  keep  that  land  to  myself.'  Sam  replied:  *  Well, 
I  am  satisfied  with  the  money,  to  go  out  to  California,  because  I 
know  I  can  do  better  in  California  than  I  can  do  here.'  That 
was  in  1858.  I  was  present  at  the  time.  My  father  would  never 
do  anything  without  asking  my  permit,  —  what  I  thought  of  it. 
This  conversation  took  place  about  two  weeks  before  Simon  went 
away.  They  talked  about  the  same  matter  afterwards.  Sam 
went  to  California,  and  was  there  eight  years,  and  he  came  back, 
and  was  here  eight  years,  and  never  opened  his  mouth  about  the 
land.  I  can't  say  that  they  talked  about  it  again  before  Simon 
went  to  California.  My  father  gave  Simon  $300  in  gold  about 
two  weeks  before  he  went  to  California.  Simon  was  then 
about  eighteen  years  old.  After  Simon  went  to  California, 
I  have  heard  father  say  he  was  going  to  keep  that  land,  and 
will  it  to  my  mother,  so  that  she  would  have  something 
to  depend  on."  In  addition  to  the  evidence  of  this  witness 
it  appears  that  a  short  time  before  Simon  Happ  started  for 
California  he  visited  his  sister,  Catherine  Peterman,  and  while 
there  she  and  her  son,  John  Peterman,  testify  that  Simon  stated 
that  he  had  received  $300  from  his  father,  and  that  he  had 
nothing  further  to  do  with  the  land.  There  was  also  other  evi- 
dence in  corroboration  of  the  testimony  of  the  three  witnesses. 
On  the  other  hand,  the  petitioner,  in  his  evidence,  denied  making 
the  statements  in  reference  to  the  money  and  the  land  proven  by 


DOWER  IN   LAND SURRENDER  OF  UNRECORDED  DEEDS.       585 

defendants,  and,  in  addition  to  this,  he  called  as  a  witness  Joseph 
Happ,  who  in  substance  testified  that  |)etitioner  left  with  his 
father  certain  articles  of  personal  property  to  be  turned  into 
money  in  payment  of  the  $300  received  from  the  father.  He 
also  testified  that  Simon  told  his  father  he  would  leave  the  deed 
with  him  until  he  returned,  and  his  father  said  he  would  take 
care  of  the  land.  The  master  in  chancery,  in  his  report,  found 
"  that  the  plaiutilf  gave  the  deed  to  his  parents,  intending 
thereV)y  to  accept  $300  in  full  payment  therefor;"  and  we  are 
inclined  to  the  opinion,  after  a  careful  consideration  of  all  the 
evidence  in  the  case,  that  the  finding  is  sustained  by  a  prepon- 
derance of  the  evidence. 

Moreover,  the  long  delay  and  laches  of  petitioner  in  asserting 
title  to  the  premises  may  be  regarded  as  a  bar  to  the  relief 
claimed  in  the  petition.  John  Happ,  the  father  of  the  peti- 
tioner, went  into  the  possession  of  the  land  in  1858.  From  that 
time  on  he  continued  in  the  possession,  asserting  title,  and  paid 
all  taxes  each  year  on  the  land  until  his  death,  in  1863.  After 
his  death,  his  widow,  Gertrude,  to  whom  the  land  was  devised, 
entered  into  the  possession,  and  paid  the  taxes  each  year  until 
1876  or  1877,  when  she  conveyed,  and  her  grantees  have  held 
the  land  and  paid  all  taxes  ever  since.  The  bill  was  not  filed  in 
this  case  until  1893.  Here  was  a  period  of  over  30  years  in 
which  the  complainant,  with  a  lull  knowledge  of  all  the  facts, 
has  suffered  John  Happ  and  those  claiming  under  him  to  possess 
and  control  the  land  as  absolute  owners,  without  asserting  title 
to  the  property.  This  long  delay  may  be  regarded  as  a  com- 
plete bar  to  the  relief  claimed  in  the  petition.  The  decree  of 
the  superior  court  will  be  affirmed.     Affirmed. 


Wife  of  Grantee  lias  Dower  in  Lands  Notwithstanding  the 
Surrender  of  the  Unrecorded  Deeds,  Except  as  Against  a 
Dona  Fide  Purchaser. 

Wheeler  v.  Smith,  62  Mich.  373;  28  N.  W.  907. 

Morse,  J.  This  is  an  action  of  ejectment  to  recover  the  pos- 
session of  forty  acres  of  land  in  the  county  of  Livingston.  John 
R.  Mason,  then  the  owner  of  the  premises  in  fee,  conveyed  this 
land,  by  warranty  deed,  dated  November  15,  1865,  and  properly 
executed,  witnessed,  and  acknowledged,  to  William  Wheeler, 
husband  of  the  plaintiff  Bridget,  and  father  of  the  plaintiff 
William  L.  Wheeler.  Wheeler  never  recorded  his  deed,  but 
moved  upon  the  premises,  then  unimproved,  built  a  log  house 
and  stable,  and  occupied  them  about  two  years,  clearing  up  and 


586  TITLE    BY    OKIUINAL    ACQUISITION. 

chopping  ten  or  fifteen  acres.  In  April,  18G8,  tiic  plaintiff 
Bridget  was  sick,  and,  with  the  consent  of  lier  husband,  went  to 
East  Saginaw,  to  her  mother's,  leaving  her  husband  on  the  farm 
with  all  the  household  goods.  She  remained  at  Saginsiw  about 
one  year.  While  she  was  away,  and  in  November,  18(58,  John 
R.  Mason,  with  the  full  consent  and  at  the  request  of  her  hus- 
l)and,  William  Wheeler,  executed  another  deed  of  the  land  to 
Andrew  Bly,  but  without  the  knowledge  or  consent  of  the  wife. 
It  seems  that  Wheeler  wrote  ui)on  the  back  of  the  deed  from 
Mason  to  himself  as  follows:  "  I  hereby  give  up  this  deed,  and 
authorize  and  request  John  R.  Mason  to  deed  the  premises  to 
Andrew  Bly."  In  1869,  Bly  deeded  to  one  Love,  who,  in  the 
same  year,  conveyed  to  one  Andrews.  In  1870  Andrews  deeded 
the  premises  to  one  French,  who,  in  1872,  conveyed  back  to 
Andrews  again.  October  5,  1872,  Andrews,  having  the  title, 
conveyed  to  the  defendant,  who  has  since  owned  and  occupied 
the  same.  These  deeds  were  all  warranties,  and  recorded. 
William  Wheeler,  after  or  about  the  time  of  the  deed  from 
Mason  to  Bly,  moved  off  from  the  premises,  and  went  to  Fen- 
ton,  Genesee  County,  to  live,  where  his  wife  found  him.  He 
or  his  wife  never  transferred  the  premises  by  deed  to  any  one. 
They  lived  together  at  Fenton  about  12  years,  Wheeler  dying 
in  1881.  They  rented  a  place  in  Fenton  in  the  spring  of  1869, 
and  in  the  fall  Wheeler  purchased  it,  the  deed  being  taken  in 
the  name  of  the  wife.  The  property  in  Fenton  was  a  frame 
house  and  four  village  lots,  and  cost  $950. 

After  the  death  of  her  husband,  Mrs.  Wheeler  commenced  an 
action  in  ejectment  to  recover  her  dower  in  the  same  premises 
involved  in  this  suit.  The  case  will  be  found  reported  in  21  N. 
W.  Rep.  370.  We  there  held  the  defendant,  Smith,  a  bona  fide 
purchaser  of  the  land,  and  the  unrecorded  deed  to  Wheeler  void 
as  against  him,  and  denied  the  plaintiff  right  of  dower  in  the 
premises.  We  said  in  that  case :  "  Whatever  plaintiff's  rights 
may  have  been,  they  depended  solely  on  the  unrecorded  deed  to 
her  husband.  Under  the  statute,  defendant's  honest  purchase, 
made  under  previous  bona  fide  purchasers,  left  this  precisely  as 
if  it  had  never  existed." 

We  find  no  reason  in  the  present  record  to  change  our  hold- 
ing. The  defendant  is  substantially  admitted  to  be  a  good-faith 
iiolder  in  the  present  case.  The  counsel  for  plaintiffs  argues 
very  forciltly  and  eloquently  that  the  homestead  right  vested  in 
the  wife  and  family  when  Wheeler  moved  upon  the  premises 
under  the  unrecorded  deed  ;  and  that  neither  the  husband,  with- 
out her  consent,  or  any  operation  of  the  registry  laws  brought 
about  by  his  connivance  or  negligence,  could  alien  or  transfer 


1 


DOWER  IN  LAND — SURRENDER  OF  UNRECORDED  DEEDS.   587 

* 

the  right  away  from  her;  that  the  right  is  a  constitutional  one, 
which  even  the  loglsUiluro  cannot  bar  by  the  passage  of  registry, 
or  and  other  f^tatiites.  We  do  not  deem  it  necessary,  however, 
to  enter  into  any  discussion  of^  this  question  of  constitutional 
right  or  legislative  power.  The  testimony  of  the  plaintiff  Bridget 
Wheeler  shows  i)1ainly  enough  that  both  she  and  her  husband 
abandoned  these  premises  as  a  homestead  some  seventeen  years 
ago,  and  the  same  year  acquired  another  upon  which  they  lived 
thereafter.  A  person  cannot  have  at  the  same  time  two  home- 
steads ;  and  the  infant  plaintiff  is  bound  by  the  acts  of  his  father 
and  mother. 

It  is  argueil  that  the  wife  did  not  intend  to  give  up  the  farm 
homestead,  and  that  she  remained  and  lived  away  from  it,  at 
Fenton,  in  the  new  home,  not  from  choice,  but  because  she  was 
compelled  to,  or  live  apart  from  her  husband,  and  perhaps  be- 
come liable  to  be  divorced  from  him  for  desertion;  and  it  is  also 
claimed  that  she  was  excused  from  taking  any  steps  to  reclaim, 
or  give  notice  of  her  intention  to  assert  her  rights  in  this  home- 
stead, because  she  was  a  married  woman,  and  could  not  move 
until  the  death  of  her  husband.  If  this  be  good  excuse,  then,  if 
Wheeler  had  lived  forty  years  longer,  she  could  at  his  death 
have  recovered  her  homestead  rights,  though  the  land  had  been 
occupied  and  cultivated  for  half  a  century  b}'  people  ignoiant  of 
her  claim. 

If  she  wished  to  dissent  from  her  husband's  sale  of  his  inter- 
est, as  ag'dxust  bona  fide  holders,  without  notice  of  his  ever 
having  any  title  to  the  premises,  or  that  she  had  homestead  or 
other  rights  therein,  she  should  have  taken  some  means  to  notify 
parties  of  her  claims.  She  knew  how  her  husband  parted  with 
his  interest,  and  that  the  land  was  being  occupied  by  parties 
in  good  faith,  under  and  through  the  deed  of  Mason  to  Bly,  or 
some  conveyance  from  her  husband  to  Bly,  and  yet  she  takes  no 
steps  whatever  in  relation  to  the  matter,  but  settles  down  quietly 
and  peacefully,  without  quarrel  even  with  her  husband  al)out 
the  sale  of  the  farm,  in  the  new  home  at  Fenton,  which  is  con- 
tracted and  paid  for  by  Wheeler,  but  deeded  to  her.  There  i,s 
no  merit  whatever  in  her  claim,  and  there  are  no  errors  in  the 
record  that  could  have  altered  the  inevitable  result  of  the  trial. 

The  judgment  is  affirmed,  with  costs  of  both  courts. 

The  record  is  remanded  for  such  further  proceedings  as  the 
parties  may  see  fit  to  take  under  the  statute. 

The  other  justices  concurred. 


588  TITLE    BY    GRANT. 


CHAPTER     XXI. 

TITLE    BY    GRANT  — PUBLIC     GKANT  —  INVOLVING     ALIENATION  — 

PRIVATE     GRANT. 

Moore  v.  Robbius,  96  U.  S.  530. 

Boom  Co.  V.  Patterson,  98  U.  S.  403. 

Childers  v.  Scbaulz,  120  Mo.  ;;05;  25  S.  W.  209. 

Havens  v.  Seashore  Land  Co.,  47  N.  J.  Eq.  365;  20  A.  497, 

Public  Grant  from  tlie  United  States  or  State  Government. 

Moore  v.  Robbius,  96  U.  S.  530. 

Mr.  Justice  Miller.  This  case  is  brought  before  us  by  a  writ 
of  error  to  the  Supreme  Court  of  the  State  of  Illinois. 

In  its  incej)tion,  it  was  a  bill  in  the  circuit  court  for  DeWitt 
County,  to  foreclose  a  mortgage  given  by  Thomas  I.  Bunn  to 
his  brother,  Lewis  Bunn,  on  the  south  half  of  the  southeast 
quarter  and  the  south  half  of  the  southwest  quarter  of  section  27, 
township  9,  range  3  east,  in  said  county.  In  the  progress  of  the 
case,  the  bill  was  amended  so  as  to  allege  that  C.  H.  Moore  and 
David  Davis  set  up  some  claim  to  the  land;  and  that  they  were 
made  defendants,  and  answered. 

Moore  said  that  he  was  the  rightful  owner  of  forty  acres  of 
the  land  mentioned  in  the  bill  and  mortgage,  to  wit,  the  south- 
west quarter  of  the  southwest  quarter  of  said  section,  and  had 
the  patent  of  the  United  States  giving  him  title  to  it. 

Davis  answered  that  he  was  the  rightful  owner  of  the  south- 
east quarter  of  said  southwest  quarter  of  section  27.  He  alleges 
that  John  P.  Mitchell  bought  the  land  at  the  public  sale  of  lands 
ordered  by  the  president  for  that  district,  and  paid  for  it,  and 
had  the  receipt  of  the  register  and  receiver,  and  that  it  was  after- 
ward sold  under  a  valid  judgment  and  execution  against  Mitchell, 
and  the  title  of  said  Mitchell  came  by  due  course  of  conveyance 
to  him,  said  Davis. 

It  will  thus  be  seen,  that,  while  Moore  and  Davis  each  assert 
title  to  a  different  forty  acres  of  the  land  covered  by  Bunn's 
mortgage  to  his  brother,  neither  of  them  claim  under  or  in 
privity  with  Bunn's  title,  but  adversely  to  it. 

But  as  both  parties  assert  a  right  to  the  land  under  purchases 
from  the  United  States,  and  since  their  rights  depend  upon  the 
laws  of  the  United  States  concerning  the  sale  of  its  public  lands, 
there  is  a  question  of  which  this  court  must  take  cognizance. 

As  regards  Moore's  branch  of  this  case,  it  seems  to  us  free 
from  difficulty. 


PUBLIC  GRANT  FROM  UNITED  STATKS  OR  STATE  GOVERNMENT.  589 

The  evidence  shows  that  the  forty  acres  which  he  claims  was 
struck  off  to  him  at  a  cent  or  two  over  $2.50  per  acre,  at  a  public 
land  sale,  by  the  officers  of  tlie  land  disti  ict  at  Danville,  Illinois, 
November  15,  1855;  that  his  right  to  it  was  contested  before  the 
register  and  receiver  by  Bunn,  who  set  up  a  prior  pre-emption 
right.  Those  officers  decided  in  favor  of  Bunn;  whereupon 
Moore  appealed  to  the  commissioner  of  the  General  Land  Office, 
who  reversed  the  decision  of  the  register  and  receiver,  and  on 
this  decision  a  patent  for  the  land  was  issued  to  Moore,  who  has 
it  now  in  his  possession. 

Some  time  after  this  patent  was  delivered  to  Moore,  Bunn 
appealed  from  the  decision  of  the  commissioner  to  the  secre- 
tary of  the  interior,  who  reversed  the  commissioner's  decision 
and  confirmed  that  of  the  register  and  receiver,  and  directed 
the  patent  to  Moore  to  be  recalled,  and  one  to  issue  to  Bunn. 
But  Moore  refused  to  return  his  patent,  and  the  land  depart- 
ment did  not  venture  to  issue  another  for  the  same  land  ;  and 
so  there  is  no  question  but  that  Moore  is  vested  now  with  the 
legal  title  to  the  land,  and  was  long  before  this  suit  was  com- 
menced. Nor  is  there,  in  looking  at  the  testimony  taken  before 
the  register  and  receiver,  and  that  taken  in  the  present  suit, 
any  just  foundation  for  Bunu's  pre-emption  claim.  We  will 
consider  this  point  more  fully  when  we  come  to  the  Davis  branch 
of  the  case. 

Taking  this  for  granted,  it  follows  that  Moore,  who  has  the 
legal  title,  is  in  a  suit  in  chancery  decreed  to  give  it  up  in 
favor  of  one  who  has  neither  a  legal  nor  an  equitable  title  to  the 
land. 

The  Supreme  Court  of  Illinois,  before  whom  it  was  not  pre- 
tended that  Bunn  had  proved  his  right  to  a  pre-emption,  in 
their  opinion  in  this  case  place  the  decree  by  which  they  held 
Bunn's  title  paramount  to  that  of  Moore  on  the  ground  that 
to  the  officers  of  the  land  department,  including  the  secretary 
of  the  interior,  the  acts  of  Congress  had  confided  the  deter- 
mination of  this  class  of  cases;  and  the  decision  of  the  secre- 
tary in  favor  of  Bunn,  being  the  latest  and  the  final  authori- 
tative decision  of  the  tribunal  having  jurisdiction  of  the  contest, 
the  courts  are  bound  by  it,  and  must  give  effect  to  it.  Robbins 
V.  Bunn,  54  111.  48. 

Without  now  inquiring  into  the  nature  and  extent  of  the 
doctrine  referred  to  by  the  Illinois  court,  it  is  very  clear  to 
us  that  it  has  no  application  to  Moore's  case.  While  conceding 
for  the  present,  to  the  fullest  extent,  that  when  there  is  a 
question  of  contested  right  between  private  parties  to  receive 
from  the  United   States  a   patent  for  any   part  of  the  public 


590  TITLE    BY    GRANT. 

land,  it  belongs  to  tho  head  of  the  land  department  to  decide 
that  question,  it  is  equally  clear  that  when  the  patent  has  been 
awarded  to  one  of  tho  contestants,  and  has  been  issued,  deliv- 
ered, and  accepted,  all  right  to  control  the  title  or  to  decide  on 
the  right  to  the  title  has  passed  from  the  land  office.  Not  only 
lias  it  passed  from  the  land  office,  but  it  has  passed  from  the 
t.\'ecutive  department  of  tho  government.  A  moment's  con- 
sideration will  show  that  this  must,  in  the  nature  of  things,  be 
so.  We  are  speaking  now  of  a  case  in  which  the  officers  of  the 
department  have  acted  within  tho  scope  of  their  authority. 
The  offices  of  register  and  receiver  and  commissioner  are  created 
mainly  for  the  purpose  of  supervising  the  sales  of  the  public 
land ;  and  it  is  a  part  of  their  daily  business  to  decide  when  a 
party  has  by  purchase,  by  pre-emption,  or  by  any  other  recog- 
nized mode,  established  a  right  to  receive  from  tho  government 
a  title  to  any  part  of  the  public  domain.  This  decision  is  sub- 
ject to  an  appeal  to  the  secretary,  if  taken  in  time.  But  if  no 
such  appeal  be  taken,  and  the  patent  issued  under  the  seal  of 
the  United  States,  and  signed  by  the  president,  is  delivered  to 
and  accepted  by  the  party,  the  title  of  the  government  passes 
with  this  delivery.  With  the  title  passes  away  all  authority  or 
control  of  the  executive  department  over  the  land,  and  over 
the  title  which  it  has  conveyed.  It  would  be  as  reasonable  to 
hold  that  any  private  owner  of  land  who  has  conveyed  it  to 
another  can,  of  his  own  volition,  recall,  cancel,  or  annul  the 
instrument  which  he  has  made  and  delivered.  If  fraud,  mis- 
take, error,  or  wrong  has  been  done,  the  courts  of  justice  pre- 
sent the  only  remedy.  These  courts  are  as  open  to  the  United 
States  to  sue  for  the  cancellation  of  the  deed  or  reconveyance 
of  the  land  as  to  individuals  ;  and  if  the  government  is  the  party 
injured,  this  is  the  proper  course. 

*' A  patent,"  says  the  court,  in  United  States  v.  Stone,  2 
Wall.  525,  *'  is  the  highest  evidence  of  title,  and  is  conclusive 
as  against  the  government  and  all  claiming  under  junior  i)atents 
or  titles,  until  it  is  set  aside  or  annulled  by  some  judicial  tri- 
bunal. In  England,  this  was  originally  done  by  scire  facias; 
but  a  bill  in  chancery  is  found  a  more  convenient  remedy." 
See,  also,  Hughes  v.  United  States,  4  Wall.  232 ;  s.  c.  11 
How.  552. 

If  an  individual  setting  up  claim  to  the  land  has  been  injured, 
he  may,  under  circumstances  presently  to  be  considered,  have 
his  remedy  against  the  party  who  has  wrongfully  obtained  the 
title  which  should  have  gone  to  him. 

But  in  all  this  there  is  no  place  for  the  further  control  of  the 
executive  department    over    the    title.     The    functions   of   that 


PUBLIC  GRANT  FROM  UNITED  STATES  OR  STATE  GOVERNMENT.   59  1 

department  necessarily  cease  when  the  title  has  passed  from  the 
government.  And  the  title  docs  so  pass  in  every  instance  where, 
under  the  decisions  of  the  officers  having  authority  in  the  mat- 
ter, a  conveyance,  generally  called  a  patent,  has  been  signed  by 
the  president,  and  sealed,  and  delivered  to  and  accepted  by  the 
grantee.  It  is  a  matter  of  course,  that,  after  this  is  done, 
neither  the  secretary  nor  any  other  executive  officer  can  enter- 
tain an  appeal.  He  is  absolutely  without  authority.  If  this 
were  not  so,  the  titles  derived  from  the  United  States,  instead 
of  being  the  safe  and  assured  evidence  of  ownership  which  they 
are  generally  supposed  to  bo,  would  be  always  subject  to  the 
fluctuating,  and  in  many  cases  unreliable,  action  of  the  land 
office.  No  man  could  buy  of  the  grantee  with  safety,  because  he 
could  only  convey  subject  to  the  right  of  the  officers  of  the  gov- 
ernment to  annul  his  title. 

If  such  a  power  exists,  when  does  it  cease?  There  is  no  stat- 
ute of  limitations  against  the  government  ;  and  if  this  right  to 
reconsider  and  annul  a  patent  after  it  has  once  become  perfect 
exists  in  the  executive  department,  it  can  be  exercised  at  any 
time,  however  remote.  It  is  needless  to  pursue  the  subject 
further.  The  existence  of  any  such  power  in  the  land  depart- 
ment is  utterly  inconsistent  with  the  universal  principle  on  which 
the  right  of  private  property  is  founded. 

The  order  of  the  secretary  of  the  interior,  therefore,  in 
Moore's  case,  was  made  without  authority,  and  is  utterly  void, 
and  he  has  a  title  perfect  both  at  law  and  in  equity. 

The  question  presented  by  the  forty  acres  claimed  by  Davis  is 
a  very  different  one.  Here,  although  the  government  has  twice 
sold  the  land  to  different  persons  and  received  the  money,  it  has 
issued  no  patent  to  either,  and  the  legal  title  remains  in  the 
United  Slates.  It  is  not  denied,  however,  that  to  one  or  the 
other  of  the  parties  now  before  the  court  this  title  equitably 
belongs ;  and  it  is  the  purpose  of  the  present  suit  to  decide  that 
question. 

The  evidence  shows  that  on  the  same  day  that  Moore  bought 
at  the  public  land  sale  the  forty  acres  we  have  just  been  con- 
sidering, Mitchell  bought  in  like  manner  the  forty  acres  now 
claimed  by  Davis;  to  wit,  November  15,  1855.  He  paid  the 
sum  at  which  it  was  struck  off  to  him  at  public  outcry,  and 
received  the  usual  certificate  of  purchase  from  the  register 
and  receiver.  On  the  20th  day  of  February,  1856,  more  than 
three  months  after  Mitchell's  purchase,  Thomas  I.  Bunn  ap- 
peared before  the  same  register  and  receiver,  and  asserted  a 
right,  by  reason  of  a  pre-emption  commenced  on  the  8th  day 
of  November,  1855,  to  pay  for  the  south  half  of  the  southwest 


592  TITLE    BY    GRANT. 

quarter  ana  the  south  half  of  southeast  quarter  of  section  27, 
which  includes  both  the  hind  of  Moore  and  Davis  in  controversy 
in  this  suit,  and  to  receive  their  certificates  of  purchase.  They 
accei)ted  his  money  and  granted  his  certificate.  A  contest  be- 
tween Bunn  on  the  one  side,  and  Moore  and  Mitchell  on  the 
other,  as  to  whether  Bunn  had  made  the  necessary  settlement, 
was  decided  by  those  officers,  in  favor  of  Bunn;  and  on  appeal, 
as  we  have  already  shown,  to  the  commissioner,  this  was 
reversed,  and  finally  the  secretary  of  the  interior,  reversing  the 
commissioner,  decided  in  favor  of  Bunn.  But  no  patent  was 
issued  to  Mitchell  after  the  commissioner's  decision,  as  there 
was  to  Moore;  and  the  secretary,  therefore,  had  the  authority, 
undoubtedly,  to  decide  finally  for  the  land  department  who  was 
entitled  to  the  patent.  And  though  no  patent  had  been  issued, 
that  decision  remains  the  authoritative  judgment  of  the  depart- 
ment as  to  who  has  the  equitable  right  to  the  land. 

The  Supreme  Court  of  Illinois,  in  their  opinion  in  this  case, 
come  to  the  conclusion  that  this  final  decision  of  the  secretary  is 
not  only  conclusive  on  the  department,  but  that  it  also  excludes 
all  inquiry  by  courts  of  justice  into  the  right  of  the  matter 
between  the  parties. 

The  whole  question,  however,  has  been  since  that  time  very 
fully  reviewed  and  considered  by  this  court  in  Johnson  v. 
Towsley,  13  Wall.  72.  The  doctrine  announced  in  that  case, 
and  repeated  in  several  cases  since,  is  this:  — 

That  the  decision  of  the  officers  of  the  land  department,  made 
within  the  scope  of  their  authority  on  questions  of  this  kind,  is 
in  general  conclusive  everywhere,  except  when  reconsidered  by 
way  of  appeal  within  that  department;  and  that  as  to  the  facts 
on  which  their  decision  is  based,  in  the  absence  of  fraud  or 
mistake,  that  decision  is  conclusive  even  in  courts  of  justice, 
when  the  title  afterward  comes  in  question.  But  that  in  this 
class  of  cases,  as  in  all  others,  there  exists  in  the  courts  of  equity 
the  jurisdiction  to  correct  mistakes,  to  relieve  against  frauds 
and  imposition,  and  in  cases  where  it  is  clear  that  those  officers 
have,  by  a  mistake  of  law,  given  to  one  man  the  land  which  on 
the  disputed  facts  belonged  to  another,  to  give  appropriate 
relief. 

In  the  recent  case  of  Shepley  et  al.  v.  Cowan  et  al.,  91  U.  S. 
340,  the  doctrine  is  thus  aptly  stated  by  Mr.  Justice  Field :  "  The 
officers  of  the  land  department  are  specially  designated  by  law 
to  receive,  consider,  and  pass  upon  proofs  presented  with  respect 
to  settlements  upon  the  public  lands,  with  a  view  to  secure  rights 
of  pre-emption.  If  they  err  in  the  construction  of  the  law  ap- 
plicable to  any  case,  or  if  fraud  is  practiced  upon  them,  or  they 


PUBLIC  GRANT  FROM  UNITED  STATES  OR  STATE  GOVERNMENT.  593 

themselves  are  chargeable  with  fraudulent  practices,  their  rulings 
may  be  reviewed  and  annulled  by  the  courts  when  a  controversy 
arises  between  private  parlies  founded  upon  their  decisions;  but, 
for  mere  errors  of  judgment  upon  the  weight  of  evidence  in  a 
contested  case  before  them,  the  only  remedy  is  by  appeal  from 
one  officer  to  another  of  the  department." 

Applying  to  the  case  before  us  these  principles,  which  are  so 
well  established  and  so  well  understood  in  this  court  as  to  need 
no  further  argument,  we  are  of  opinion,  if  we  take  as  proved 
the  sufficiency  of  the  occupation  and  improvement  of  Bunn  as  of 
the  date  which  he  alleged,  his  claim  is  fatally  defective  in  another 
respect  in  which  the  officers  of  the  land  department  were  mis- 
taken as  to  the  law  which  governed  the  rights  of  the  parties,  or 
entirely  overlooked  it. 

In  the  recent  case  of  Atherton  v.  Fowler  we  had  occasion  to 
review  the  general  policy  and  course  of  the  government  in  dis- 
posing of  the  public  lands,  and  we  stated  that  it  had  formerly 
been,  if  it  is  not  now,  a  rule  of  primary  importance  to  secure  to 
the  government  the  highest  price  which  the  land  would  bring  by 
offering  it  publicly  at  competitive  sales,  before  a  right  to  any 
part  of  it  could  be  established  by  private  sale  or  by  pre  emption. 
In  the  enforcement  of  this  policy,  the  act  of  September  14, 
1841,  which  for  the  first  time  established  the  general 
principal  of  pre-emption,  and  which  has  remained  the  basis 
of  that  right  to  this  day,  while  it  allowed  persons  to 
make  settlements  on  the  public  lands  as  soon  as  the 
surveys  were  completed  and  filed  in  the  local  offices, 
affixed  to  such  a  settlement  two  ctmditions  as  affecting  the  right 
to  a  pre-emption.  One  of  these  was  that  the  settler  should  give 
notice  to  the  land  office  of  the  district,  within  thirty  days  after 
settlement,  of  his  intention  to  exercise  the  right  of  pre-emption, 
and  the  other  we  will  give  in  the  languao-e  of  the  fourteenth 
section  of  that  act :  — 

"  This  act  shall  not  delay  the  sale  of  any  of  the  public  lands 
of  the  United  States  beyond  the  time  which  has  been  or  may  be 
appointed  l)y  the  proclamation  of  the  president,  nor  shall  any 
of  the  provisions  of  this  act  be  available  to  any  person  who 
shall  fail  to  make  the  proof  of  payment  and  file  the  affidavit 
required,  before  the  commencement  of  the  sale  aforesaid."  5 
Stat.  457. 

There  can  be  no  misconstruction  of  this  provision,  nor  any 
doubt  that  it  was  the  intention  of  Congress  that  none  of  the 
liberal  provisions  of  that  act  should  stand  in  the  way  of  a  sale 
at  auction  of  any  of  the  public  lands  of  a  given  district  where 
the  purchase  had  not  been  completed  by  the  payment  of  the  price 

38 


594  TITF-K    BY    GRANT. 

before  the  commencement  of  the  sales  ordered  by  the  president's 
proclamation.  Wo  do  not  decide,  because  we  hiive  not  found  it 
necessary  to  do  so,  whether  this  provision  is  afjplicable  under  all 
the  pre-emption  laws  passed  since  the  act  of  1841,  1  hough  jiart 
of  it  is  found  in  the  Revised  Statutes,  §  2282,  as  part  of  the  ex- 
isting law.  But  we  have  so  far  exauiinod  all  those  laws  enacted 
prior  to  November,  1855,  the  date  of  Mitchell's  purchase,  as  to 
feel  sure  it  was  in  full  operation  at  that  time.  The  act  of  March 
3,  1853,  extending  the  right  of  pre-emption  to  the  alternate  sec- 
tions, which  the  government  policy  reserved  in  its  numerous 
grants  to  railroads  and  other  works  of  internal  improvement, 
required  the  pre-emptor  to  pay  for  them  at  $2.50  per  acre,  before 
they  should  be  offered  for  sale  at  public  auction.  10  Stat.  244. 
This  was  only  two  years  and  a  half  before  these  lands  were  sold 
to  Mitchell,  and  they  were  parts  of  an  alternate  section  reserved 
in  a  railroad  grant.  That  statute,  in  its  terms,  was  limited  to 
persons  who  had  already  settled  on  such  alternate  sections, 
and  it  may  be  doubted  whether  any  right  of  pre-emption  by  a 
settlement  made  afterward  existed  under  the  law.  But  it  is 
unnecessary  to  decide  that  point,  as  it  is  beyond  dispute  that  it 
requires  in  any  event  that  the  money  should  be  paid  before  the 
land  was  offered  for  sale  at  public  auction. 

The  record  of  this  case  shows  that,  while  Bunn's  pre-emption 
claim  comes  directly  within  the  provisions  of  both  statutes,  they 
were  utterly  disregarded  in  the  decision  of  the  secretary  of  the 
interior,  on  which  alone  his  case  has  any  foundation. 

We  have  no  evidence  in  this  record  at  what  time  the  presi- 
dent's proclamation  was  issued,  or  when  the  sale  under  it  began 
at  which  Mitchell  purchased.  These  proclamations  are  not 
published  in  the  statutes  as  public  laws,  and  this  one  is  not 
mentioned  in  the  record.  But  we  know  that  the  public  lands 
are  never  offered  at  public  auction  until  after  a  proclamation 
fixing  the  day  when  and  the  place  where  the  sales  begin.  The 
record  shows  that  both  Moore  and  Mitchell  bought  and  paid 
for  the  respective  forty-acre  pieces  now  in  contest,  at  public 
auction.  That  they  were  struck  off  to  them  a  few  cents  in  price 
above  the  minimum  of  $2.50,  below  which  these  alternate  sec- 
tions could  not  be  sold,  and  that  this  was  on  the  15th  day  of 
November,  1855.  These  public  sales  were  going  on  then  on 
that  day,  and  how  much  longer  is  not  known,  but  it  might  have 
been  a  week,  or  two  weeks,  as  these  sales  often  continue  open 
longer  than  that. 

Bunn  states  in  his  application,  made  three  months  after  this, 
that  this  settlement  began  on  the  8th  of  November,  1855.  It  is 
pot  apparent  from  this  record  that  he  ever  gave  the  notice  of  his 


PUBLIC  GRANT  FROM    UNITED  STATES  OR  STATK  GOVERNMENT.      5!»5 

intention  to  pre-empt  the  hind,  by  filing  what  is  called  a  declara- 
tion of  that  intention  in  the  land  ofBce.  There  is  a  copy  of  such 
a  declaration  in  the  record  accomi)anyinw  the  affidavit  of  settle- 
ment, cultivation,  and  qualification  required  of  a  pre-emptor, 
which  last  paper  was  made  and  sworn  to  February  20,  185<>, 
when  he  proved  up  his  claim,  and  paid  for  and  received  his  coi- 
tificate.  There  is  nothin*;^  to  show  when  the  declaration  of  in- 
tention was  filed  in  the  otEce. 

Waiving  this,  however,  which  is  a  little  obscure  in  the  record, 
it  is  very  clear  that  Buun  "failed  to  make  proof  of  payment, 
and  failed  to  file  the  affidavit  of  settlement  required,  before 
the  commencement  of  the  sale  "  at  which  Mitchell  bouirht.  The 
statute  declares  that  none  of  the  provisions  of  the  act  shall  be 
available  to  any  person  who  fails  to  do  this.  The  affidavit  and 
payment  of  Bunn  were  made  three  months  after  the  land  sales 
had  commenced,  and  after  these  lands  had  been  sold. 

The  section  also  declai'es  that  the  act  shall  not  delay  the  sale 
of  any  public  laud  beyond  the  time  which  has  been  or  may  be 
appointed  by  the  proclamation  of  the  president.  To  refuse 
Mitchell's  bid  on  account  of  any  supposed  settlement,  even  it  it 
had  been  brought  to  the  attention  of  the  officers,  would  have 
been  to  delay  the  sale  beyond  the  time  appointed,  and  would, 
therefore,  have  been  in  violation  of  the  very  statute  under  which 
Bunn  asserts  his  right. 

Whatever  Bunn  may  have  done  on  the  8th  of  November,  and 
up  to  the  15th  of  that  month,  in  the  way  of  occupation,  settle- 
ment, improvement,  and  even  notice,  could  not  withdraw  the 
land  from  sale  at  public  auction,  unless  he  had  also  paid  or  offered 
to  pay  the  price  before  the  sales  commenced. 

It  seems  quite  probable  tiiat  such  attempt  at  settlement  a^<  lii> 
did  make  were  made  while  the  land  sales  were  going  on,  or  a  feu- 
days  before  they  began,  with  the  purpose  of  preventing  the  sal(>, 
in  ignorance  of  the  provision  of  the  statute  which  made  such 
attempt  ineffectual. 

At  all  events,  we  are  entirely  satisfied  that  the  lands  in  con- 
troversy were  subject  to  sale  at  public  auction  at  the  time  Moore 
and  Mitchell  bid  for  and  bought  them ;  that  the  sale  so  made 
was  by  law  a  valid  one,  vesting  in  them  the  equitable  title,  with 
right  to  receive  the  patents  ;  and  that  the  subsequent  proceed- 
ings of  Bunn  to  enter  the  land  as  a  pre-emptor  were  unlawful 
and  void. 

It  was  the  duty  of  the  court  of  Illinois,  sitting  as  a  court  of 
equity,  to  have  declared  that  the  mortgage  made  by  Bunn,  so 
far  as  these  lands  are  concerned,  created  no  lien  on  them,  be- 
cause he  had  no  right,  legal  or  equitable,  to  them. 


596  Trn,K  i$y  grant. 

The  decree  of  the  Supreme  Court  of  thjit  State  must  be  reversed 
and  the  cause  remanded  to  that  court  for  further  proceedings 
in  accordance  with  this  opinion;   and  it  is  so  ordered. 


Title  by  Kmineut  Domain. 

Boom  Co.  V   Patterson,  98  U.  S.  403. 

Mr.  Justice  Field.  The  plaintiff  in  error  is  a  corporation 
created  under  the  laws  of  Minnesota  to  construct  booms  between 
certain  designated  points  on  the  Mississippi  and  Rum  rivers 
in  that  State.  It  is  authorized  lo  enter  u})on  and  occupy  any 
land  necessary  for  properly  conducting  its  business  ;  and  where 
such  land  is  private  property,  to  apply  to  the  district  court 
of  the  county  in  which  it  is  situated  for  the  appointment  of 
commissioners  to  appraise  its  value  and  take  proceedings  for 
its  condemnation.  It  is  unnecessary  to  state  in  detail  the 
various  steps  required  to  obtain  the  condemnation.  It  is  suffi- 
cient to  observe  that  the  law  is  framed  so  as  to  give  proper 
notice  to  the  owners  of  the  land,  and  secure  a  fair  appraisement 
of  its  value.  If  the  award  of  the  commissioners  should  not  be 
satisfactory  to  the  company,  or  to  anyone  claiming  an  interest 
in  the  land,  an  appeal  may  be  taken  to  the  district  court,  where 
it  is  to  be  entered  by  the  clerk  **  as  a  case  upon  the  docket  " 
of  the  court,  the  persons  claiming  an  interest  in  the  land  being 
designated  as  plaintiffs,  and  the  company  seeking  its  condemna- 
tion as  defendant.  The  court  is  then  required  to  "  proceed 
to  hear  and  determine  such  case  in  the  same  manner  that  other 
cases  are  heard  and  determined  in  said  court."  Issues  of  fact 
arising  therein  are  to  be  tried  by  a  jury,  unless  a  jury 
be  waived.  The  value  of  the  land  being  assessed  by  the  jury 
or  the  court,  as  the  case  may  be,  the  amount  of  the  assessmen'. 
is  to  be  entered  as  a  judgment  against  the  company,  which 
is  subject  to  review  by  the  Supreme  Court  of  the  State  on  a 
writ  of  error. 

The  defendant  in  error,  Patterson,  was  the  owner  in  fee  of  an 
entire  island  and  parts  of  two  other  islands  in  the  Mississipjii 
river,  above  the  Falls  of  St.  Anthony,  in  the  county  of  Anoka, 
in  Minnesota.  These  islands  formed  a  line  of  shore,  with  occa- 
sional breaks,  for  nearly  a  mile  parallel  with  the  west  bank  of 
the  river,  and  distant  from  it  about  one-eighth  of  a  mile.  The 
land  owned  by  him  amounted  to  a  little  over  thirty-four  acres, 
and  embraced  the  entire  line  of  shore  of  the  three  islands,  with 
the  exception  of  about  three  rods.  The  position  of  the  islands 
specially  fitted  them,  in  connection  with  the  west  bank  of  the 


TITLE    BY    EMINENT    DOMAIN.  597 

river,  to  form  a  boom  of  extensive  dimensions,  capable  of  hold- 
ing with  safety  from  twenty  to  thirty  millions  of  feet  of  logs. 
All  that  was  required  to  form  a  boom  a  mile  in  length  and  one- 
eighth  of  a  mile  in  width  was  to  connect  the  islands  with  each 
other,  and  the  lower  end  of  the  island  farthest  down  the  river 
with  the  west  bank;  and  this  connection  could  be  readily  made 
by  boom  sticks  and  piers. 

The  land  on  these  islands  owned  by  the  defendant  in  error 
the  company  sought  to  condemn  for  its  uses;  and  upon  its  ap- 
plication commissioners  were  appointed  by  the  district  court  to 
appraise  its  value.  They  awarded  to  the  owner  the  sum  of 
$3,000.  The  company  and  the  owner  both  appealed  from  this 
award.  When  the  case  was  brought  before  the  district  court,  the 
owner,  Patterson,  who  was  a  citizen  of  the  State  of  Illinois,  ap- 
plied for  and  obtained  its  removal  to  the  circuit  court  of  the 
United  States,  where  it  was  tried.  The  jury  found  a  general 
verdict  assessing  the  value  of  the  land  at  $9,358.33;  but  accom- 
panied it  with  a  special  verdict  assessing  its  value  aside  from 
any  consideration  of  its  value  for  boom  purposes  at  $300,  and, 
in  view  of  its  adaptability  for  those  purposes,  a  further  and 
additional  value  of  $9,058.33.  The  company  moved  for  a  new 
trial,  and  the  court  granted  the  motion,  unless  the  owner  would 
elect  to  reduce  the  verdict  to  $5,500.  The  owner  made  this 
election,  and  judgment  was  thereupon  entered  in  his  favor  for 
the  reduced  amount.  To  review  this  judgment  the  company  has 
brought  the  case  here  on  a  writ  of  error. 

The  only  question  on  which  there  was  any  contention  in  the 
circuit  court  was  as  to  the  amount  of  compensation  the  owner 
of  the  land  was  entitled  to  receive,  and  the  principle  upon  which 
the  compensation  was  to  be  estimated.  But  the  company  now 
raise  a  further  question  as  to  the  jurisdiction  of  the  circuit  court. 
Objections  to  the  jurisdiction  of  the  court  below,  when  they  go 
to  the  subject-matter  of  the  controversy,  and  not  to  the  form 
merely  of  its  presentation  or  to  the  character  of  the  relief 
prayed,  may  be  taken  at  any  time.  They  are  not  waived  because 
they  were  not  made  in  the  lower  court. 

The  position  of  the  company  on  this  head  of  jurisdiction  is 
this ;  That  the  proceeding  to  take  private  property  for  public 
use  is  an  exercise  by  the  State  of  its  sovereign  right  of  eminent 
domain,  and  with  its  exercise  the  United  States,  a  separate  sov- 
ereignty, has  no  right  to  interfere  by  any  of  its  departments. 
This  position  is  undoubtedly  a  sound  one,  so  far  as  the  act  of 
appropriating  the  property  is  concerned.  The  right  of  eminent 
domain,  that  is,  the  right  to  take  private  property  for  public 
uses,  appertains  to  every  independent  government.     It  requires 


598  TITLE    BY    GRANT. 

no  constitutional  recognition  ;  it  is  an  attribute  of  sovereignty. 
The  clause  found  in  the  constitutions  of  the  several  States  pro- 
viding for  just  compensation  for  property  taken  is  a  mere  limita- 
tion upon  the  exercise  of  the  right.  When  the  use  is  public, 
the  necessity  or  expediency  of  appropriating  any  particular 
property  is  not  a  subject  of  judicial  cognizance.  Tiio  pioperty 
may  be  appropriated  by  an  act  of  the  legislature,  or  the  power 
of  appropriating  it  may  be  delegated  to  private  corporations,  to 
be  exercised  by  them  in  the  execution  of  works  in  wiiich  the 
public  is  interested.  But  notwithstanding  the  right  is  one  that 
appertains  to  sovereignly,  when  the  sovereign  power  attaches 
conditions  to  its  exercise,  the  inquiry  whether  the  conditions 
have  been  observed  is  a  popular  matter  for  judicial  cognizance. 
If  that  inquiry  take  the  form  of  a  proceeding  before  the  courts 
between  parties  —  the  owners  of  the  land  on  the  one  side,  and 
the  company  seeking  the  appropriation  on  the  other — there  is  a 
controversy  which  is  subject  to  the  ordinary  incidents  of  a  civil 
suit,  and  its  determination  derogates  in  no  respect  from  the  sov- 
ereignty of  the  State. 

The  proceeding  in  the  present  case  before  the  commissioners 
appointed  to  appraise  the  land  was  in  the  nature  of  an  inquest 
to  ascertain  its  value,  and  not  a  suit  at  law  in  the  ordinary 
sense  of  those  terms.  But  when  it  w^as  transferred  to  the  dis- 
trict court  by  appeal  from  the  award  of  the  commissioners,  it 
took,  under  the  statute  of  the  State,  the  form  of  a  suit  at  law, 
and  was  thenceforth  subject  to  its  ordinary  rules  and  incidents. 
The  point  in  issue  was  the  compensation  to  be  made  to  the  owner 
of  the  land;  in  other  words,  the  value  of  the  property  taken. 
No  other  question  was  open  to  contestation  in  the  district  court. 
Turner  v.  Halloran,  11  Minn.  253.  The  case  would  have  been 
in  no  essential  particular  different  had  the  State  authorized  the 
company  by  statute  to  appropriate  the  particular  property  in 
question,  and  the  owners  to  bring  suit  against  the  company  in 
the  courts  of  law  for  its  value.  That  a  suit  of  th>it  kind  could 
be  transferred  from  the  State  to  the  Federal  court,  if  the  con- 
troversy were  between  the  company  and  a  citizen  of  another 
State,  cannot  be  doubted.  And  we  perceive  no  reason  against 
the  transfer  of  the  pending  case  that  might  not  be  offered  against 
the  transfer  of  the  case  supposed. 

The  act  of  March  3,  1875,  provides  that  any  suit  of  a  civil 
nature,  at  law  or  in  equity,  pending  or  brought  in  a  State  court, 
in  which  there  is  a  controversy  between  citizens  of  different 
States,  may  be  removed  by  either  party  into  the  circuit  court 
of  the  United  Slates  for  the  proper  district;  and  it  has  long 
been  settled  that  a  corporation   will  be  treated,  were  contracts 


TITLE    BY    EMINENT   DOMAIN.  599 

or  rights  of  property  are  to  be  enforced  by  or  against  it,  as  a 
citizen  of  the  State  under  the  hiws  by  which  it  is  created,  within 
the  clause  of  the  constitution  extending  the  judicial  power  of 
the  United  States  to  controversies  between  citizens  of  different 
Slates.  Paul  V.Virginia,  8  Wall.  177.  And  in  Gaines  r.  Fuentes, 
92  U.  S.  20,  it  was  held  that  a  controversy  between  citizens  is 
involved  in  a  suit  whenever  any  property  or  claim  of  the  parties, 
capable  of  pecuniary  estimation,  is  the  subject  of  litigation  and 
is  presented  by  the  pleadings  for  judicial  determination.  Within 
the  meaning  of  these  decisions,  we  think  the  case  at  bar  was 
properly  transferred  to  the  circuit  court,  and  that  it  had  juris- 
diction to  determine  the  controversy. 

Upon  the  question  litigated  in  the  court  below,  the  compensa- 
tion which  the  owner  of  the  land  condemned  was  entitled  to  re- 
ceive, and  the  principle  upon  which  the  compensation  should  be 
estimated,  there  is  less  difficulty.  In  determining  the  value  of 
land  appropriated  for  public  purposes,  the  same  considerations 
are  to  be  regarded  as  in  a  sale  of  property  between  private 
parties.  The  inquiry  in  such  cases  must  be  what  is  the  property 
worth  in  the  market,  viewed  not  merely  with  reference  to  the 
use  to  which  it  is  at  the  time  applied,  but  with  reference  to  the 
uses  to  which  it  is  plainly  ada()ted ;  that  is  to  say  what  is  it 
worth  from  its  availability  for  valuable  uses.  Property  is  not  to 
be  deemed  worthless  l^ecause  the  owner  allows  it  to  go  to  waste, 
or  to  be  regarded  as  valueless  because  he  is  unable  to  put  it  to 
any  use.  Others  may  be  able  to  use  it,  and  make  it  subserve 
the  necessities  or  conveniences  of  life.  Its  capability  of  being 
made  thus  available  gives  it  a  market  value  which  can  be  readily 
estimated. 

So  many  and  varied  are  the  circumstances  to  be  taken  into 
account  in  determining  the  value  of  property  condemned  for 
public  purposes,  that  it  is  perhaps  impossible  to  formulate  a  rule 
to  govern  its  appraisement  in  all  cases.  Exceptional  circum- 
stances will  modify  the  most  carefully  guarded  rule;  but,  as  a 
general  thing,  we  should  say  that  the  compensation  to  the  owner 
is  to  be  estimated  by  reference  to  the  uses  for  which  the  prop- 
erty is  suitable,  having  regard  to  the  existing  business  or  wants 
of  the  community,  or  such  as  may  be  reasonably  expected  in  the 
immediate  future. 

The  position  of  the  three  islands  in  the  Mississippi  fitting  them 
to  form,  in  connection  with  the  west  bank  of  the  river,  a  boom 
of  immense  dimensions,  capable  of  holding  in  safety  over  twenty 
millions  of  feet  of  logs,  added  largely  to  the  value  of  the  lands. 
The  boom  company  would  greatly  prefer  them  to  more  valuable 
agricultural  lands,  or  to  lands  situated  elsewhere  on  the  river ; 


600  TITLE    BY    GRANT. 

as,  by  utillzinji^  them  in  the  luanDer  proposed,  they  would  save 
heavy  expenditures  of  money  in  constructing  a  boom  of  equal 
capacity.  Their  adaptability  for  boom  purposes  was  a  circum- 
stance, therefore,  which  the  owner  had  a  right  to  insist  upon  as 
an  element  in  estimating  tlie  value  of  his  lands. 

We  do  not  understand  that  all  persons,  except  the  plaintiff  in 
error,  were  precluded  from  availing  themselves  of  these  lands 
for  the  construction  of  a  boom,  either  on  their  own  account  or 
for  general  use.  The  clause  in  its  charter  authorizing  and  re- 
quiring it  to  receive  and  take  the  entire  control  and  management 
of  all  logs  and  timber  to  be  conveyed  to  any  point  on  the  Mis- 
sissippi river  must  be  held  to  apply  to  the  logs  and  timber  of 
parties  consenting  to  such  control  and  management,  not  to  logs 
and  timber  of  parties  choosing  to  keep  the  control  and  manage- 
ment of  them  in  their  own  hands.  The  Mississippi  is  a  naviga- 
ble river  above  the  Falls  of  St.  Anthony,  and  the  State  could 
not  confer  an  exclusive  use  of  its  waters,  or  exclusive  control 
and  management  of  logs  floating  on  it,  against  the  consent  of 
their  owners.  Whilst  in  Atlee  v.  Packet  Company,  21  Wall. 
389,  we  held  that  a  pier  obstructing  navigation,  erected  in  the 
river  as  part  of  a  boom,  without  license  or  authority  of  any  kind 
except  such  as  arises  from  the  ownership  of  the  adjacent  shore, 
was  an  unlawful  structure,  we  did  not  mean  to  intimate  that  the 
owner  of  land  on  the  Mississippi  could  not  have  a  boom  adjoin- 
ing it  for  the  reception  of  logs  of  his  own  or  of  others,  if  he 
did  not  thereby  impede  the  free  navigation  of  the  stream. 
Aside  from  this,  we  do  not  think  that  the  State  is  precluded  by 
anything  in  the  charter  of  the  company  from  giving  a  license  to 
the  defendant  in  error  to  construct  a  boom  near  his  lands. 
Moreover,  the  United  States,  having  paramount  control  over 
the  river,  may  grant  such  license  if  the  State  should  refuse  one. 
The  adaptability  of  the  lands  for  the  purpose  of  a  boom  was, 
therefore,  a  proper  element  for  consideration  in  estimating  the 
v.due  of  the  lands  condemned.  The  contention  on  the  part  of 
the  plaintiff  in  error  is,  that  such  adaptability  should  not 
be  considered,  assuming  that  this  adaptability  could  never  be 
made  available  by  other  persons,  by  reason  of  its  supposed 
exclusive  privileges  ;  in  other  words,  that  by  the  grant  of  exclu- 
sive privileges  to  the  company  the  osvner  is  deprived  of  the  value 
which  the  lands,  by  their  adaptability  for  boom  purposes,  pre- 
viously possessed,  and  therefore  should  not  receive  anything 
from  the  company  on  account  of  such  adaptability  upon  a  con- 
demnation of  the  lands.  We  do  not  think  that  the  owner,  by 
the  charter  of  the  company,  lost  this  element  of  value  in  his 
property. 


TAX  TITLE  BASED  ON  JUDGMENT  FOR  DELINQUENT  TAXES.       601 

The  views  we  have  ex[)re.ssed  as  to  the  justness  of  considering 
the  peculiai*  fitness  of  the  lauds  for  particular  purposes  as  an 
element  in  estimating  their  value  find  support  in  the  several 
cases  cited  by  the  counsel.  Thus,  In  the  Matter  of  Furman 
Street,  17  Wend.  669,  where  a  lot  upon  which  the  owner  had 
his  residence  was  injured  by  cuttini^  down  an  embankment  in 
opening  a  street  in  the  city  of  Brooklyn,  the  Supreme  Court  of 
New  York  said  that  neither  the  purpose  to  which  the  property 
was  applied,  nor  the  intention  of  the  owner  in  relation  to  its 
future  enjoyment,  was  a  matter  of  much  importance  in  deter- 
mining the  compensation  to  be  made  to  him  ;  but  that  the  proper 
inquiry  was:  *'  What  is  the  value  of  the  property  for  the  most 
advantageous  uses  to  which  it  may  be  applied?"  In  Goodwin 
V.  Cincinnati  &  Whitewater  Canal  Co.,  18  Ohio  St.  169,  where 
a  railroad  company  sought  to  appropriate  the  bed  of  a  canal  for 
its  track,  the  Supreme  Court  held  that  the  rule  of  valuation  was 
what  the  iuterest  in  the  canal  company  was  worth,  not  for  canal 
purposes  or  any  other  particular  use,  but  generally  for  any  and  all 
uses  for  which  it  might  be  suitable.  And  in  Young  v.  Harrison, 
17  Ga.  30,  where  land  necessary  for  an  abutment  of  a  bridge  was 
appropriated,  the  Supreme  Court  of  Georgia  held  that  its  value 
was  not  to  be  restricted  to  its  agricultural  or  productive  capaci- 
ties, but  that  inquiry  might  be  made  as  to  all  purposes  to  which 
it  could  be  applied,  having  reference  to  existing  and  prospective 
wants  of  the  community.  Its  value  as  a  bridge  site  was,  there- 
fore, allowed  in  the  estimate  of  compensation  to  be  awarded  to 
the  owner. 

These  views  dispose  of  the  principle  upon  which  the  several 
exceptions  by  the  plaintiff  in  error  to  the  rulings  of  the  court 
below  in  giving  and  in  refusing  instructions  to  the  jury  were 
taken,  and  we  do  not  deem  it  important,  therefore,  to  comment 
upon  them.     Judgment  affirmed. 


Tax  Title  Based  on  Judgment  for  Delinquent  Taxes. 

Childers  v.  Schautz,  120  Mo.  305;  25  S.  W.  209 

Black,  C.  J.  This  was  an  action  of  ejectment  for  160 
acres  of  land  in  Vernon  County.  James  H.  Godsey  owned  the 
land  at  the  time  of  his  death.  He  died  in  1862,  leaving  a 
widow,  Elizabeth,  and  two  sons,  namely,  William  E.  and  James 
H.  Godsey.  The  widow  married  John  Banner.  She  and  Ban- 
ner and  the  two  sons  conveyed  the  lands  to  the  plaintiff  in  this 
suit  by  a  quitclaim  deed  dated  the  4th  February,  1888.     The 


602  TITLE    BY    GRANT. 

defondiints,  for  title,  rely  uj)on  the  following  proceedings  and 
deed  ;  In  1880  the  collector  couinienced  a  suit  against  William 
Godsey,  Elizabeth  Banner,  and  John  Banner,  her  husband,  and 
the  unknown  heirs  of  James  H.  Godsey,  to  enforce  the  State's 
lien  for  taxes  for  the  year  1878.  The  defendants  were  notified 
by  a  vacation  order  of  publication.  At  the  return  term,  — that 
is  to  say,  November  term,  1880, — and  after  the  order  of  puli- 
lication  had  been  made,  the  petition  was  amended  by  inserting 
the  name  of  J.  F.  Norman  as  an  additional  defendant,  and  hi; 
entered  his  appearance.  Judgment  was  then  entered  against 
all  the  defendants,  it  being  a  judgment  by  default  as  to  all 
except  Norman,  who  hud  appeared.  The  land  was  sold  under  a 
special  execution  issued  on  this  judgment,  and  Norman  became 
the  purchaser,  and  received  a  sheriff's  deed,  dated  5th  May, 
1881.  All  the  title  acquired  by  Norman  passed  through  several 
persons  by  warranty  deeds  to  John  C.  Taylor,  who  conveyed  to 
the  defendants  by  warranty  deed  dated  in  August,  1885.  At 
that  date  the  land  was  open  prairie,  unoccupied,  and  had  never 
been  fenced  or  broken.  The  plaintiff,  to  defeat  the  above- 
mentioned  sheriff's  deed  to  J.  F.  Norman,  produced  in  evidence 
another  sherift"s  deed  to  William  R.  Crockett,  dated  the  7th  of 
November,  1878,  based  upon  a  special  execution  issued  upon  a 
judgment  rendered  upon  an  order  of  publication  in  a  suit  of  the 
collector  against  James  H.  Godsey  and  James  L,  Nichols,  to 
enforce  the  State  lien  for  delinquent  taxes  foi*  the  years  1869  to 
1876,  and  a  quitclaim  deed  from  Crockett  to  J.  F.  Norman. 
These  deeds  were  recorded  in  June,  1880.  James  H.  Godsey 
died,  it  will  be  seen,  some  15  years  before  the  commencement 
of  the  last-mentioned  tax  suit ;  and  Nichols,  the  other  defend- 
ant, had  no  interest  in  the  property. 

1.  We  will  first  notice  the  objections  made  to  the  sheriff's  deed 
to  J.  F.  Norman,  upon  which  the  defendants  rely  for  title. 
That  deed  stands  upon  the  judgment  in  the  suit  instituted  by  the 
collector  against  William  Godsey,  Elizabeth  Banner,  and  John 
Banner,  her  husband,  and  the  unknown  heirs  of  James  H.  God- 
sey. The  petition  in  that  case,  as  has  been  said,  was  amended 
by  adding  the  name  of  J.  F.  Norman  as  a  defendant  after 
the  publication  against  the  other  defendants  had  been  made  ; 
and  the  first  objection  is  that  there  should  have  been  a 
new  order  of  publication.  This  case  is  unlike  that  of  Jan- 
ney  v.  Spedden,  38  Mo.  395,  to  which  we  are  cited.  That 
was  a  suit  to  enforce  a  vendor's  lien.  Janney  had  been 
notified  by  publication  only,  and  the  plaintiff  then  dis- 
missed his  petition  as  to  all  that  part  asking  for  the  enforce- 
ment of  the  lien,  and  on  the  order  of  publication  took  a  personal 


TAX  TITLE  BASED    ON  JUDGMENT  FOR  DELINQUENT  TAXES.     603 

judgment  against  Janney.  The  court  held  that  the  object  and 
nature  of  the  suit  was  wholly  changed  by  discontinuing  as  to 
the  i)art  of  the  petition  seeking  the  enforcement  of  a  vendor's 
lien,  and  that  the  personal  judgment  rendered  was  void.  Here 
the  plaintiff  amended  by  adding  a  new  defendant,  nothing  more; 
the  cause  of  action  remained  the  same  after  as  before  the 
amendment.  As  the  amendment  did  not  in  the  least  change  the 
cause  of  action,  it  was  not  necessary  to  take  out  a  new  order  of 
l)uhlicatioii. 

The  next  objection  to  this  deed  is  that  the  order  of  publica- 
tion is  worthless,  because  it  did  not  notify  the  defendants  when 
to  appear.  The  papers  and  files  in  that  case  were  lost  when  this 
one  was  tried.  The  suit  was  commenced  in  1880.  The  person 
who  was  deputy  clerk  at  that  time  testified  that  a  book  was  kept 
in  the  office,  known  as  the  "  Book  of  Orders  of  Publication  in 
Vacation;  "  that  the  book  contained  printed  forms,  with  blank 
spaces  for  names  of  parties,  description  of  lands,  dates,  etc.  ; 
and  that  it  was  his  custom  to  issue  an  order  of  publication,  and 
then  copy  them  in  his  book,  and  send  the  originals,  signed  and 
under  the  seal  of  the  court,  to  the  printer.  The  copy  of  the 
order  of  publication  found  in  this  book,  produced  in  evidence,  is 
conceded  to  be  formal,  except  that  part  which  is  in  these  words: 
"  And  unless  they  be  and  appear  at  the  next  term  of  said  court, 
to  be  holden  at  the  courthouse  in  the  city  of  Nevada,  in  the 
county  and  State  aforesaid,  on  the  first  Monday  in  November, 
187  ,  and  on  or  before,"  etc.,  the  deputy  clerk  testified  further 
that  he  was  satisfied  the  date  was  filled  out  in  the  order  sent  to  the 
printer  so  as  to  read  on  the  first  Monday  of  November,  1880,  and 
that  the  blank  in  the  book  was  not  changed  to  correspond  with 
the  order  by  reason  of  some  oversight.  There  is  here  a  manifest 
clerical  error.  According  to  the  evidence  of  the  deputy  clerk, 
the  original  order  was  sent  to  the  newspaper  office,  so  that  the 
order  produced  in  evidence  is  but  a  copy,  and  therefore  second- 
ary evidence.  The  evidence  of  the  clerk  tends  to  show  that  the 
original  order  specified  the  first  Monday  in  November,  1880,  as 
the  date  when  the  defendants  should  appear,  and  this  conclusion 
is  perfectly  reasonable  when  we  consider  the  fact  that  the  copy 
in  the  book  was  made  out  by  filling  blank  spaces  in  a  printed 
form.  It  also  appears  from  the  recitals  in  the  judgment  that 
there  was  an  affitlavit  of  the  publisher  of  the  newspaper  on  file 
when  the  judgment  by  default  was  entered,  and  that  this  affidavit 
was  examined  by  the  court.  The  usual  practice  is  to  attach  a 
copy  of  the  order  as  published  to  the  affidavit,  so  that  the  infer- 
ence is  a  fair  one  that  the  court  examined  the  order  as  pub- 
lished before  giving  judgment  by  default.     The  mistake  was  in 


604  TITLE    BY    GRANT. 

the  original  order  or  in  the  copy  or  in  botii,  and  there  is  an 
abuudiinco  of  evidence  from  which  the  court  could  find,  as  ijt  did, 
that  the  niistuke  was  in  the  copy  pro(hiced  in  evidence,  and  not 
in  the  ori<;iiial  pubhslied  order.  The  objection  to  the  pul)lica- 
tioii  is  therefore  not  well  taken,  because  the  court  found  the  fact 
to  be  that  the  published  order  notified  the  defendants  to  appear 
on  the  first  Monday  of  November,  1880. 

2.  It  is  next  insisted  that  J.  F.  Norman  acquired  no  title  by 
the  sheriff's  deed  to  him,  because  he  is  to  be  deemed  to  have 
been  in  possession  of  the  land  at  the  date  of  that  deed  under  a 
prior  chiim  and  color  of  title,  and  hence  it  was  his  duty  to  pay 
the  taxes,  and  his  purchase  of  the  land  under  the  tax  suit  judg- 
ment amounted  to  no  more  than  a  payment  of  them.  Norman 
was  not,  and  never  had  been,  in  actual  possession.  This  is  con- 
ceded. The  claim  that  he  is  to  be  deemed  to  have  had  posses- 
sion is  based  on  section  7G98,  Rev.  St.  1889,  which  provides  in 
substance  that  any  person  putting  a  tax  deed  on  record  shall  be 
deemed  to  have  set  up  such  title  as  to  enable  the  claimant  to 
prosecute  an  action  for  the  possession.  This  section  comes 
down  from  the  revenue  act  of  1872,  and  the  "  tax  deed  "  men- 
tioned in  it  has  reference  to  a  collector's  deed  made  under  the 
provisions  of  that  act.  That  section  therefore  has  no  applica- 
tion to  a  sheriff's  deed  made  pursuant  to  a  sale  under  an  exe- 
cution issued  on  a  judgment  in  a  suit  to  enforce  the  State's  lien 
for  delinquent  taxes.  Norman  therefore  did  not  have  actual  or 
constructive  possession  when  he  purchased  the  land  under  the 
judgment  against  himself  and  the  unknown  heirs  of  James  H.God- 
sey.  Though  not  in  posses^^ion,  it  seems  he  made  some  claim  to 
the  land  at  that  time  ;  for  the  old  sheriff's  deed  to  Crockett  and 
the  quitclaim  deed  of  the  latter  to  Norman  were  of  record  at 
that  date.  Besides  this,  it  appears  Norman  appeared  in  court  on 
the  same  day  that  he  purchased  the  property  at  the  sheriff's  sale, 
and  moved  the  court  to  order  the  sheriff  to  pay  over  to  him  the 
amount  which  he  bid  in  excess  of  the  judgment  and  costs  — that 
is  to  say,  $38.44  —  and  this  motion  was  sustained.  We  are  not 
called  upon  here  to  determine  what  effect  claiming  and  obtaining 
this  excess  would  have  in  a  suit  between  Norman  and  the  heirs  of 
Godsey.  *'A  purchaser  at  a  sheriff's  sale  looks  to  the  judg- 
ment, execution,  levy,  and  sheriff's  deed.  All  other  questions 
are  between  the  parties  to  the  judgment  and  the  sheriff." 
Lenox  v.  Clark,  52  Mo.  115  ;  Hewitt  v.  Weatherby,57  Mo.  276. 
The  same  rule  applies  in  favor  of  those  who  acquire  title  from 
the  purchaser  at  the  execution  sale.  The  defendants  were 
therefore  not  bound  to  take  notice  of  the  subsequent  order 
directing  the   excess    to   be    paid   over   to   Norman.     The   old 


TAX  TITLE  BASKD  ON  JUDOMKNT  FOEi  DELINQUENT  TAXES.       <i05 

sheriff's  deed  to  Crockett,  based  upon  the  judgment  in  the  tax 
suit  against  Godsey  and  Nichols,  conveyed  no  title,  because 
Nichols  never  had  any  interest  in  the  land,  and  because  Godsey 
was  dead  when  that  suit  was  commenced  (Graves  v.  Ewart,  99 
Mo.  17;  11  S.  W.  971);  and  it  follows  that  the  quitclaim  deed 
from  Crockett  to  Norman  conveyed  nothing.  The  facts,  then, 
as  to  this  branch  of  the  case  are  that  Norman  was  not  in  posses- 
sion, and  had  no  title  to  the  land  when  he  purchased  at  the  sale 
under  the  tax  judgment  against  himself  and  the  heirs  of  God- 
sey. That  judgment  simply  ordered  the  land  to  be  sold  to  pay 
the  taxes  thereon.  There  was,  and  could  have  been,  no  personal 
judgment  against  the  defendants,  or  any  of  them.  There  was 
no  relation  of  confidence  or  trust  existing  between  him  and 
them,  and  he  was  under  no  obligation  to  them  to  discharge  the 
tax  lien.  If  he  did  not  acquire  title  by  his  purchase  it  was 
because  he  was  in  duty  bound  to  the  State  to  pay  the  taxes,  and 
ought  not  to  be  allowed  to  make  profit  by  a  disregard  of  that 
duty.  It  is  generally  held  that  one  in  possession  under  claim 
and  color  of  title  should  pay  the  taxes,  and  hence  cannot  acquire 
title  by  purchase  at  a  tax  sale.  Black  Tax  Titles  (2d  Ed.), 
§  289.  The  same  author,  when  speaking  of  those  cases  where 
one  holding  a  tax  title  seeks  to  strengthen  it  by  a  second  pur- 
chase, says:  "The  cases  found  a  distinction  upon  the  facts  of 
possession,  and  hold  that  the  title  of  a  tax-sale  purchaser,  who 
is  in  possession  under  the  deed,  is  not  strengthened  by  succes- 
sive purchases  at  subsequent  sales  of  the  same  land  for  taxes. 
*  *  *  Consistently  with  the  foregoing,  it  is  also  thought 
that  one  who  holds  a  tax  deed,  whether  valid  or  void,  under 
which  he  has  not  gone  into  possession,  may  abandon  all  claim 
of  title  under  it,  and  acquire  title  under  a  deed  for  taxes  as- 
sessed upon  the  land,  after  he  took  such  earlier  deed."  Section 
291.  In  the  case  of  Pickerings.  Lomax,  120  III.  289;  11  N. 
E.  175,  which  was  an  action  of  ejectment,  the  plaintiff  claimed 
under  a  series  of  deeds  from  individuals.  For  another  title  be 
put  in  evidence  a  tax  deed  based  upon  taxes  which  accrued 
while  he  made  claim  to  the  land  under  the  deeds  from  the  in- 
dividuals. As  to  this  tax  deed  it  was  said:  "If  the  plaintiff 
had  been  in  the  actual  possession  of  the  land  under  claim  of 
title,  the  law  would  require  him  to  pay  the  taxes,  and,  it  being 
his  duty  to  do  so,  it  may  be  true  that  in  such  case  he  could 
not  profit  by  a  disregard  of  a  legal  duty,  by  allowing  the  land 
to  go  to  sale  and  thus  acquire  title.  But  the  plaintiff  was 
not  in  the  possession  of  the  land,  and  he  did  not  have  title, 
as  we  have  shown,  and  he  was  under  no  obligation  to  pay 
the  taxes    on  the  land   he  did   not  own,  and,  being   under  no 


606  TITLR    BY    GRANT. 

obli<^ation  to  do  so,  we  see  no  reason  why  he  might  not  pur- 
chase a  tax  title  on  the  land,  and  rely  on  such  title,  as  well  as 
any  other  person,  not  interested  in  the  premises."  The  follow- 
ing cases  are  to  the  same  efl'ect :  Atkins()n  v.  Dixon,  89  Mo, 
404  ;  1  S.  W.  13  ;  Lybrand  v.  Haiiey,  31  Wis.  230;  Blackwood  v. 
Van  Vleit,  30  Mich.  118;  Coxe  v.  Gibson,  27  Pa.  St.  160. 
There  was,  as  we  have  said,  no  relation  existing  between  Nor- 
man and  the  heirs  of  Godsey,  which  made  it  his  duty  to  them 
to  pay  the  taxes,  and  he  was  under  no  obligation  to  the  State  to 
pay  them,  for  he  was  neither  the  owner  of  the  land  nor  in  pos- 
session; and  we  conclude  he  had  a  right  to  purchase  at  the  sale 
made  by  virtue  of  the  special  execution,  and  that  by  such  pur- 
chase he  acquired  the  title  of  his  codefendants.  Neither  the 
fact  that  the  collector  saw  fit  to  make  him  a  defendant  in  the 
tax  suit,  nor  the  fact  that  he  placed  upon  the  record  the  prior 
worthless  deeds,  can  have  the  effect  to  resolve  the  last  purchase 
into  a  simple  payment  of  the  taxes.  The  judgment  is  therefore 
affirmed.     All  concur. 


Dual  Character  of  Coinmoii  Conveyances. 

Havens  v.  Seashore  Land  Co.,  47  N.  J.  Eq.  365;  20  A.  497. 

Van  Fleet,  V.  C.  This  is  a  partition  suit.  The  title  to  one 
of  the  tracts  which  the  complainants  seek  to  have  divided  is  in 
dispute.  The  defendant  asserts  title  to  the  whole  tract.  The 
complainants,  on  the  other  hand,  assert  a  title  to  the  undivided 
half  of  it,  but  admit  that  the  defendant  has  title  to  an  undivided 
fourth,  and  that  the  title  to  the  other  undivided  fourth  is  in  cer- 
tain other  persons.  The  defendant  exhibits  a  paper  title  to  the 
whole  tract.  The  important  question,  therefore,  presented  for 
decision  is,  is  the  title  exhibited  by  the  defendant  valid?  For, 
if  it  is,  the  bill,  as  against  the  defendant,  as  to  that  tract,  must 
be  dismissed.  Both  parties  claim  under  David  Curtis,  who  died 
testate  between  1783  and  1788.  At  the  time  of  his  death  he 
owned  two  undivided  sevenths  of  Manasquan  beach,  one  of 
which  he  acquired  from  Elisha  Lawrence  by  deed  dated  July, 
1770,  and  the  other  from  Benjamin  Lawrence  by  a  deed  which 
it  is  alleged  is  lost.  Among  the  gifts  made  by  David  Curtis  by 
his  will,  there  is  one  which  reads,  in  substance,  as  follows:  "  I 
give  and  devise  unto  my  eldest  son,  Elisha,  that  right  of  beach  I 
bought  of  Elisha  Lawrence,  — to  him,  and  the  heirs  of  his  body 
lawfully  begotten  ;  and,  for  the  want  of  such  heir  or  heirs,  then 
to  be  equally  divided   between   my  two  sons  John  and  Benja- 


DUAL    CHARACTER   OF   COMMON    CONVEYANCES,  607 

mill."  Duvid  Curtis,  I)e8i(Ics  limiting  over  to  his  two  sons  John 
.111(1  Bonjiimiu,  the  lantl  devised  to  his  son  Elisha,  made  John  and 
Benjamin  his  residuary  devisees,  and  they,  as  such  devisees,  took 
that  undivided  seventh  of  Manasquan  beach  which  had  been  con- 
veyed to  their  father  by  Benjamin  Ijavvrence.  The  thing  in  dis- 
pute is  the  one-half  of  that  seventh  which  David  Curtis  acquired 
from  Elisha  Lawrence,  and  which  he,  by  his  will,  limited  over 
to  his  son  John,  in  case  his  son  Elisha,  for  the  want  of  heirs  of 
his  body,  did  not  take  it.  The  defendant  claims  this  half,  and 
puts  forward  as  the  foundation  of  its  title  a  deed  purporting  to 
have  been  made  on  the  3 1st  day  of  May,  1788,  by  John  Curtis 
to  Joseph  Lawrence.  The  whole  contest  between  the  parties 
centers  in  this  deed.  If  it  passed  the  land  in  controversy,  the 
defendant  will  be  entitled  to  prevail  in  this  suit.  If  it  did  not, 
the  complainants  will  be  entitled  to  the  decree  they  ask.  The 
complainants  contend  —  First,  that  the  deed  has  not  been  suffi- 
ciently proved  to  entitle  it  to  be  admitted  in  evidence;  and, 
secondhj,  that,  if  it  was  admitted,  no  effect  could  be  given  to  it 
(1)  for  the  want  of  apt  words  to  pass  any  right  or  estate  which 
the  grantor  may  have  held  at  the  time  of  its  execution,  and  (2) 
because  the  grantor  then  held  no  right  or  estate  in  the  land  which 
he  could  grant  or  convey.  These  questions  will  be  considered 
in  an  order  directly  the  reverse  of  that  in  which  they  have  just 
been  stated.  It  is  undisputed  that  Elisha  Curtis,  the  eldest  son 
of  David,  died  childless,  never  having  had  issue  of  his  body. 
John  died  before  Elisha.  Their  deaths  occurred  very  near 
together  in  point  of  time,  but  the  proofs  make  it  entirely  clear 
that  John  died  first,  so  that  it  was  undetermined  when  John  died 
whether  or  not  Elisha  would  have  issue  of  his  body.  As  the  law 
stood  when  the  devise  to  Elisha  took  effect,  it  is  clear  that  he 
took  an  estate  tail  in  the  land  devised.  Our  statute  cutting  an 
-slate  tail  down  to  an  estate  for  life  in  the  first  taker,  with 
r.  mainder  in  fee  to  the  issue  of  his  bod}',  was  not  passed  until 
1820  (Elmer  Dig.,  p.  130,  pt.  6),  and  the  devise  to  Elisha  took 
«  ffect  prior  to  1 788.  Chief  Justice  Kirkpatrick  stated  with  great 
clearness,  in  Den  v.  Taylor,  5  N.  J.  Law,  413,  417,  what  words 
would  be  held  to  be  sufficient  to  create  an  estate  tail.  He  said: 
"  It  is  as  well  settled  that  a  devise  to  one  and  his  heirs,  and,  if  he 
die  without  issue,  then  over  to  another,  creates  an  estate  tail  as  if 
the  principal  devise  had  been,  in  the  most  technical  language,  to 
him,  and  to  the  heirs  of  his  body.  The  words  of  the  devise 
over,  *  if  he  die  without  issue,  then  over  to  another,'  limit  the 
generality  of  the  term  '  heirs '  in  the  principal  devised,  and 
lead  us  to  the  inevitable  conclusion  that  the  testator  intended 
heirs  of  the  body  only,  and  not  heirs  generally.     And  whenever 


608  TITLK    »V    OIUNT. 

this  intention  can  be  collected  from  the  whole  will,  taken  to- 
gether, let  the  phraseology  in  the  particular  clauses  of  it  be  what 
it  may,  it  has  been  always  construed  to  make  an  estate  tail," 
This  statement  of  the  law  has  been  so  uniformly  followed  by  the 
courts  of  this  State  as  to  have  become  a  canon  of  real  prop- 
erty law.  Moore  v.  Rake,  2(5  N.  J.  Law,  574,  585.  It  is  en- 
tirely clear  that  Elisha  Curtis  took  an  estate  tail  in  the  land  in 
controversy.  This  being  so,  it  necessarily  follows  that  the  devise 
over  to  John  and  Benjamin,  in  case  Elisha  did  not  have  issue  of 
his  body,  gave  them  a  vested  remainder  in  fee,  subject  to  be 
defeated  by  the  birth  of  issue  to  Elisha.  The  law  is  settled  that 
a  remainder  limited  upon  an  estate  tail  will  be  held  to  be  vested, 
though  it  is  uncertain  whether  a  right  to  possession  will  ever 
vest  in  the  remainderman. 

The  decision  of  the  court  of  errors  and  a))pea1s  in  Moore  v. 
Rake,  26  N.  J.  Law,  574,  is  directly  in  point,  and  furnishes  an 
authoritative  illustration  of  the  manner  in  which  this  principle  of 
law  is  to  be  applied.  The  devise  in  that  case  took  effect  in  1795, 
and  was  expressed  substantially  in  this  form  :  "  I  give  to  my  son 
Isaac,  his  heirs  and  assigns,  all  my  lands  whereon  I  now  live,  to 
hold  to  him,  his  heirs  and  assigns,  forever  ;  but,  if  my  son  Isaac 
should  die  without  lawful  issue,  then  I  give  my  land  to  my  wife,  her 
heirs  and  assigns,  forever."  The  testator's  son  Isaac  died  in  1843, 
without  issue,  never  having  been  married.  His  mother,  the  tes- 
tator's widow,  died  in  1832,  over  10  years  before  Isaac.  The  con- 
troverted question  in  the  case  was  whiit  estate  the  testator's  wife 
took  under  the  devise.  The  court  held  that  she  took  a  vested 
remainder,  and  not  by  way  of  an  executory  devise,  nor  a  contin- 
gent remainder.  Each  of  the  three  judges  who  wrote  opinions  — 
Chancellor  Williamson,  and  Justices  Elmer  and  VreGlenburgh  — 
so  expressly  declared.  Justice  Vredenburgh  (page  586)  gave 
the  following  summary  of  the  leading  rules  distinguishing  a 
vested  from  a  contingent  remainder:  "  An  estate  is  vested  when 
theie  is  a  present  fixed  right  of  present  or  future  enjoyment. 
The  law  favors  the  vesting  of  remainders,  and  does  it  at  the  first 
opportunity.  It  is  the  present  capacity  of  taking  effect  in 
possession,  if  the  possession  were  to  become  vacant,  that  distin- 
guishes a  vested  from  a  contingent  remainder.  It  is  the  uncer- 
tainly of  the  right  which  renders  a  remainder  contingent,  not  the 
uncertainty  of  the  actual  enjoyment.  A  remainder  limited  upon 
an  estate  tail  is  held  to  be  vested,  though  it  is  uncertam  if  the 
possession  will  ever  take  place."  There  can,  therefore,  be  no 
doubt  that  John  Curtis,  by  force  of  the  devise  to  him,  took  a 
vested  remainder  in  fee  in  the  land  in  controversy,  and  it  is 
equally  certain,  if  such  was  the  character  of  his  estate,  that  he 


DUAL    CHARACTER    OF    COMMON    CONVEYANCES.  600 

had  good  right  and  full  power  to  iiuike  an  effectual  convej'unce 
of  it  dui-ing  the  life  of  his  hrollicr  Elisha. 

If  a  different  conclusion  h.id  been  reached  as  to  the  nature  of 
John's  estate,  and  it  liad  been  found  that  the  remainder  limited 
to  him  was  contiufrent,  still  I  think  that  the  court  would  have 
been  bound  to  declare,  in  conformity  to  the  well-settled  law  on 
this  subject,  that  he  had  full  power,  during  the  life  of  Elisha,  to 
make  an  effectual  conveyance  of  his  estate  in  the  land,  though  it 
was  uncertain  whether  snch  estate  would  vest  in  possession.  All 
contingent  estates  of  iidieritance,  or  possibilities  coupled  with  an 
interest,  where  the  person  who  is  to  take  is  certain,  may  be  con- 
veyed or  devised  before  the  contingency  on  which  they  depend 
happens.  In  Ackerman's  Adin'rs  v.  Vreeland's  Ex'r,  14  N. 
J.  Eq.  23,  29,  Chancellor  Green  said  :  "  It  may  be  relied 
on  as  a  rule  that  every  interest  in  lands,  however  i emote 
the  possibility  is,  may  be  released."  The  law  on  this  subject, 
as  stated  by  Sergeant  AYilliams  in  his  note  to  Purefoy  v. 
Rogers,  2  Saiind.  388,  nnd  adopted  by  the  Supreme  Court 
in  Den  v.  Mannirs,  20  N.  J.  Law,  142,  145,  and  restated 
approvingly  by  Justice  Vredenburgh  in  Moore  v.  Eake,  26  N. 
J.  Law,  593,  is  this  :  It  seems  now  to  be  established,  notwith- 
standing some  old  opinions  to  the  contrary,  that  contingent 
and  executory  estates  and  possibilities,  accompanied  by  an 
interest,  are  descendible  to  the  heir,  or  transmissible  to  the 
representative,  of  a  person  dying,  or  may  bo  granted,  assigned, 
or  devised  by  him,  before  the  contingency  u[)on  which  they 
depend  takes  effect."  These  authorities  make  it  plain  that  the 
first  question  must  be  decided  infav(»r  of  the  defendant.  At  the 
date  of  the  deed  which  the  defendant  puts  forward  as  the 
foundation  of  its  title,  there  can  be  no  doubt  that  John  Curtis 
had  full  power  to  make  an  effectual  conveyance  of  the  land  in 
controversy. 

Assuming,  for  the  present,  that  the  deed  on  trial  has  been 
sufficiently  proved  to  entitle  it  to  be  admitted  in  evidence,  the 
next  question  is,  what  effect  shall  be  given  to  it?  Did  it  pass 
the  estate  of  John  Curtis  in  the  land  in  controversy?  Its  grant- 
ing clause  is  in  these  words:  "  Witnesseth,  that  the  said  John 
Curtis,  for  and  in  consideration  of  the  just  and  full  sum  of  six- 
teen pounds,  proclamation  money,  hath  remised,  released,  and 
forever  quitclaimed,  and  by  these  presents  for  himself  and  his 
heirs,  doth  fully,  clearly,  and  absolutely  remise,  release,  and 
forever  quitclaim,  unto  the  said  Joseph  Lawrence,  all  his  right, 
title,  interest,  and  pro[)erty,"  etc.  It  will  be  observed  that, 
although  the  grant  is  not  made  to  the  grantee  and  his  heirs,  it  is 
made  by  the  grantor  for  himself  and  his  heirs.     This  language, 

39 


610  TITLK    BY    UHANT. 

stan(lin<»  by  itself,  and  in  the  absence  of  any  words  plainly  indi- 
cating that  the  estate  to  be  granted  was  less  than  a  fee,  wonld 
seem  to  furnish  very  cogent  evidence  that  the  grantor  intended 
to  convey  a  fee.  That  such  was  the  intention  of  the  maker  of 
this  instrument  is  put  beyond  all  question  by  the  language  of 
its  Jiahendwn,  which  is  in  these  words:  "To  h;ive  and  to  hold 
the  al)ove,  [then  designating  the  thing  conveyed,]  with,  all  and 
singular,  the  privileges  and  appurtenances  thereunto  belonging, 
[reserving  liberty  to  fish  and  gun,]  to  the  only  proper  use, 
benefit,  and  behoof  of  him,  the  said  Joseph  Lawrence,  his  heirs 
and  assigns  forever  ;  so  that  neither  he,  the  said  John  Curtis,  nor 
Mercy,  his  wife,  nor  their  heirs,  nor  any  other  person  or  persons, 
for  themselves,  or  any  other  of  the  name,  or  in  the  name,  right, 
or  stead  of  any  of  them,  shall  or  will,  by  any  way  or  means, 
hereafter  claim,  challenge,  or  demand  any  right,  title,  or  inter- 
est of,  in,  or  to  the  said  right,  or  any  part  or  parcels  thereof." 
Where  the  irrantinor  clause  of  a  deed  is  silent  as  to  the  estate  in- 
tended  to  be  conveyed,  resort  may  be  had  to  the  habendum  to 
ascertain  the  intention  of  the  grantor  in  that  regard.  It  cannot 
be  used  either  to  enlarge  or  diminish  the  estate  specifically  defined 
in  the  granting  clause,  for  if  it  is  repugnant  to  that  clause  it  is 
void;  but,  if  that  clause  is  either  silent  or  ambiguous,  then  the 
habendum  becomes  the  standard  by  which  the  estate  granted 
must  be  measured.  The  chief  justice,  speaking  for  the  court  of 
errors  and  appeals,  in  Gravel  Co.  v.  Newell,  52  N.  J.  Law, — , 
19  At!.  Rep.  209,  said;  "The  well-settled  rule  is  that,  if  the 
granting  part  of  the  convevance  does  not,  by  clear  and  definite 
terms,  conclude  the  question,  this  clause  (the  habendum,),  whose 
office  is  to  define  the  extent  of  the  ownership  granted,  may  be 
resorted  to.  It  may  be  used  to  explain,  but  not  to  vary  or  con- 
trol, the  premises."  And  Justice  Depue,  in  speaking  for  the 
same  court,  in  Melick  v.  Pidcock,  44  N.  J.  Eq.  525,  540;  15  Atl. 
Rep.  3,  said  ;  "  To  create  a  fee  the  limitation  must  be  to  heirs, 
but  it  may  be  made  either  in  direct  terms  or  by  immediate  ref- 
erence, and  it  is  not  essential  that  the  word  '  heirs  '  be  located 
in  any  particular  part  of  the  grant."  No  doubt  can  be  enter- 
tained that,  if  this  instrument  passed  anything,  it  passed  a  fee. 
But  it  is  further  said  that  the  deed  on  trial  contains  no  words 
of  conveyance,  but  merely  words  of  release,  and  as  the  defend- 
ant has  admitted  by  its  answer  that  so  far  as  it  has  been  able  to 
discover,  the  person  to  whom  the  release  was  made  was,  at  the 
date  of  its  execution,  without  right  of  any  kind  in  the  land 
released,  the  release  must,  as  a  matter  of  law,  be  adjudged  to  be 
without  legal  force.  Both  of  the  propositions  of  fact  upon  which 
this  contention  rests  appear  to  be  true.     The  operating  or  essen- 


DUAL  CHARACTER  OF  COMMON  CONVEYANCES.       611 

tial  words  of  tlie  deed  are  "  remise,  reiease,  and  quitclaim,"  and 
it  is  al.>-o  true  that  the  defendant  admits  that  the  i)erson  to  whom 
the  deed  was  made,  was  at  the  date  of  its  execution,  without 
right  in  the  land  released  ;  hut,  as  I  understand  the  law,  it  does 
not  follow  that  the  deed,  for  these  reasons,  must  be  adjudged  to 
be  nugatory.  On  the  contrary,  I  think  the  law  from  the  earliest 
times  has  made  it  the  duty  of  the  courts  in  all  cases,  where  it 
appeared  that  the  deed  put  on  trial  w-as  founded  on  a  valuable 
consideration,  and  there  was  no  reason  to  declare  that  it 
had  been  unfairly  obtained,  to  sustain  it  and  carry  it  into 
effect,  if  by  law  it  were  possible  to  do  so.  More  than  a 
century  ago  Lord  Mansfield  said:  "  The  rules  laid  down  in 
respect  of  the  construction  of  deeds  are  founded  in  law, 
reason,  and  common  sense,  that  they  shall  operate  accord- 
ing to  the  intention  of  the  parties,  if  by  law  they  may:  and 
if  they  cannot  operate  in  one  form,  they  shall  operate  in  that 
which  by  law  will  effectuate  the  intention."  Goodtitle  v. 
Bailey,  Cowp.  597,  600.  And  in  Shi'ppard's  Touchstone  the  same 
doctrine  is  stated  in  this  wise:  "A  deed  that  is  intended  and 
make  to  one  purpose  may  inure  to  another;  for,  if  it  will  not 
take  effect  that  way  it  is  intended,  it  may  take  effect  another 
way.  And  therefore  a  deed  made  and  intended  for  a  release 
may  amount  to  a  grant  of  a  reversion,  an  attornment  or  a  sur- 
render, or  e  converso.  And  if  a  man  have  two  ways  to  pass  lands 
by  the  common  law,  and  he  intended  to  pass  them  one  may,  and 
they  will  not  pass  that  way,  in  that  case,  ut  res  valeat,  they  may 
pass  the  other  way."  First  Amer.  Ed.  82.  Judge  Hare,  in  his 
notes  to  Roe  v.  Tranmarr,  Willes,  682  ;  2  Wils.  75,  says:  "  Any 
instrument  which  shows  that  a  title  was  meant  to  be  given  in  re- 
turn for  value  received  will  be  equally  effectual  with  the  most 
formal  deed;  words  to  raise  a  use,  and  a  consideration  to  sup- 
port it,  being  all  that  is  requisite  to  call  the  statute  of  uses  into 
operation,  and  constitute  a  bargain  and  sale.  A  deed  which  has 
failed  of  effect  as  a  release,  from  the  want  of  an  estate  in  pos- 
session in  the  releasee,  or  as  a  feoffment,  from  want  of  livery  of 
seisin,  may  consequently  be  rendered  valid  as  a  bargain  and  sale 
by  the  averment  and  proof  of  a  valuable  consideration,  although 
none  is  expressed  in  the  writing."  2  Smith  Lead.  Cas. 
(8th  Amer.  Ed.)  534.  And  Chancellor  Kent,  while  chief 
justice  of  the  Supreme  Court  of  New  York,  said,  in  pro- 
nouncing the  prevailing  opinion  of  that  court  in  Jackson  v. 
Alexander,  3  Johns.  484,  492:  "The  law  from  the  beginning 
has  been  very  indulgent  in  helping  out  deeds  on  the  ground 
of  consideration."  And  in  his  Commentaries  he  snid:  "Any 
words  that  will  raise  a  use  will,  with  a  valuable  consideration, 


(il2  TITLK    15Y    OKANT. 

amount  to  a  b!ir<^iiiu  and  f^ale."  4  Kent.  Cotnm.  496.  These 
citations  lender  it  unnecessary  to  discuss  the  questioa  as  to  what 
effect  shall  be  given  to  the  deed  on  trial.  They  make  it  clear 
that  it  i)assed  the  land  by  way  of  bargain  and  sale.  'J'he  deed 
shows  on  ils  face  that  it  was  founded  on  a  valuabh;  consideiation 
paid  by  the  grantee;  hence,  if  the  deeil  shall  bo  admitted  in  evi- 
dence, the  fact  that  a  valuable  consideration  was  i)aid  for  the 
land  will  be  established  by  proof  inherent  in  the  deed.  No  pai- 
tieular  foiin  of  words  is  required  to  raise  a  use.  Any  words 
will  l)e  sufficient  for  that  purpose  which  show  an  intention  to 
convey.  That  such  was  the  intention  of  the  maker  of  this  in- 
strument is  put  beyond  dispute  by  the  words  of  the  instrument 
itself.  Eti'ect  must  be  given  to  the  deed  as  a  bargain  and  sale. 
We  now  come  to  the  question,  has  the  deed  been  sufficiently 
proved  to  entitle  it  to  be  admitted  into  evidence?  It  was  not 
acknowledged,  but  purports  to  have  been  executed  in  the  pres- 
ence of  two  subscribing  witnesses.  If  it  is  an  honest  paper  it 
was  executed  over  100  yeai's  ago.  This  great  lapse  of  time  puts 
it  out  of  the  power  of  the  defendant  to  call  the  subscribing  wit- 
nesses, or  to  produce  any  direct  evidence  of  the  authenticity  of 
the  signatures  of  either  the  subscribing  witnesses  or  the  grantor. 
All  persons  who  could  give  such  evidence  we  know  nmst  have 
been  dead  for  years.  The  antiquity  of  the  paper  appears  to  me 
to  1)6  fully  established.  This  paper  itself  furnishes,  I  think, 
very  strong  evidence  of  that  fact.  Its  color  and  texture  show 
that  it  is  very  ancient.  Its  water-mark  indicates  that  it  was 
made  in  the  reign  of  one  of  the  Georges.  The  spelling  and 
style  of  penmanship  are  such  as  distinguish  documents  written 
near  the  beginning  of  the  present  century  from  those  written  at 
a  more  recent  date.  And  the  consideration  mentioned  in  it,  it 
will  be  observed,  is  expressed  in  a  currency  whieh,  as  a  matter 
of  history,  we  know  was  in  use  about  the  time  the  deed  purports 
to  have  been  made.  It  is  undoubtedly  true  that  all  these  things 
might  exist  if  the  paper  had  been  forged,  but  there  is  no  proof 
suggesting  even  a  suspicion  of  forgery,  and  the  law  never  pre- 
sumes either  fraud  or  crime.  Besides,  it  is  not  to  be  supposed, 
as  Judge  Harper,  of  the  court  of  appeals  of  South  Carolina  very 
pertinently  remarked  in  Robinson  v.  Craig,  1  Hill,  389,  391, 
that  "  a  deed  would  be  forged  with  a  view  to  a  fraud  to  be  com- 
mitted  at  the  end  of  30  years."  The  motive  which  usually  leads 
to  crime  is  the  hope  of  present  gain.  No  motive  of  that  kind 
existed  in  this  case.  Until  quite  recently  the  land  in  controversy 
was  worthless,  not  capable  of  being  u-^ed  with  profit  for  any  pur- 
pose, a  mere  barren  waste,  lying  between  the  waters  of  the  Atlan- 
tic ocean  and  Barnegat  bay.     Nobody  ever  had  possession  of  it 


DUAL    CHARACTER    OF    COMMON    CONVEYANCES.  613 

or  exercised  any  acts  of  ownership  over  it  until  the  latter 
part  of  1880,  when  the  defendant  built  a  small  house  and  some 
fence  on  it,  which  it  subsequently  caused  to  be  removed. 
From  the  date  of  the  deed  until  less  than  12  years  ago  the  land 
was  regarded  as  without  presenter  prospective  value.  In  this 
state  of  affairs,  it  is  impossible  to  believe  that  anybody  would 
have  expended  the  time  and  talent  requisite  in  the  perpetration 
of  such  a  complicated  forgery  simply  to  place  himself  in  a  posi- 
tion where  he  might  set  up  a  claim  to  a  worthless  tract  of  land. 
But  there  is  other  evidence  on  this  point.  The  deed  on  trial,  it 
will  be  remembered,  purports  to  have  been  made  May  31,  1788, 
by  John  Curtis  to  Joseph  Lawrence.  Joseph  Lawrence — Cur- 
tis' grantee  —  conveyed  the  same  land  to  James  Price  by  deed 
dated  November  16,  1790.  The  latter  deed,  though  purporting 
to  have  been  executed  in  the  presence  of  three  subscribing  wit- 
nesses, is  unacknowledged,  and  the  same  objections  are  urged 
against  its  admission  in  evidence  that  are  urged  against  the  ad- 
missibility of  the  other.  Joseph  Lawrence,  in  his  deed  to  Price, 
described  the  land  which  he  conveys  as  that  part  of  Sqan  beach 
"  which  I  bought  of  John  Curtis,  which  was  left  to  him  by  his 
father,  David  Curtis,  deceased,  which  he  bought  of  Elisha 
Lawrence,  deed  bearing  date  July  9,  1770."  Now,  although 
this  description  does  not  say  in  express  words  that  John 
Curtis  had  made  a  deed  to  Joseph  Lawrence,  still  I  think 
it  says  so  in  substance  and  effect.  What  it  says  in  plain  words 
is  that  Joseph  Lawrence  had  bought  the  land  of  John  Curtis, 
and  as  this  was  said  by  Joseph  Lawrence,  in  the  instrument 
which  he  used  to  transfer  the  title  to  the  land  from  himself 
to  another,  —  in  which  instrument  it  will  be  observed  that  he 
describes  another  transfer  of  title  by  almost  precisely  similar 
words,  namely,  "  which  he  bought  of  Elisha  Lawrence,  deed 
bearing  date,  etc.,  —  there  would  seem  to  be  no  reason  to 
doubt  what  Joseph  Lawrence  meant  by  the  phrase,  ♦'  which  I 
bought  of  John  Curtis,"  and  what  his  grantee  understood  he 
meant,  was  that  the  title  he  was  conveying  was  the  same  title 
that  had  been  made  to  him  by  John  Curtis  by  deed.  The 
phrase,  *' under  consideration"  amounted,  unquestionably,  to 
a  direct  and  positive  assertion  of  title  by  Joseph  Lawrence, 
and  that  he  had  acquired  his  title  from  John  Curtis.  This 
is  suflScient,  in  my  judgment,  especially  when  considered  in  con- 
nection with  the  proof  inherent  in  the  paper  itself,  to  justify 
the  presumption  that  the  deed  on  trial  was  in  existence  on  the 
16th  day  of  November,  1790,  when  Lawrence  conveyed  to 
Price.  A  recital  in  an  ancient  deed  or  will  of  any  antecedent 
deed  or  document,  consistent  with  its  own  provisions,  will,  after 


614  TITLE    BY    GKANT. 

the  lapse  of  u  long  j^oriod,  be  presuniptivo  proof  of  the  former 
existence  of  such  deed  or  document,  especially  in  a  case  where 
nothin<r  appears  to  rcl)uf,  such  presumption.  Fuller  v.  Saxton, 
20  N.  J.  Law,  61,  65.  James  Price -:- Joseph  Lawrence's 
grantee  —  conveyed  the  land  in  ((uestion  to  James  Price,  Jr.,  by 
deed  duly  executed  and  recorded  in  December,  1813.  No  allu- 
sion, however,  was  made  in  this  deed  to  either  of  the  two  prior 
deeds.  James  Price,  eJr.,  together  with  his  wife,  conveyed,  in 
1836,  by  a  deed  executed  in  due  form  of  law,  the  land  in  contro- 
versy to  James  Johnson.  A  certified  coi)y  of  this  latter  deed 
was  put  in  evidence  without  ol)jection.  It  refers,  in  express 
terms,  to  the  deed  executed  November  16,  1790,  by  Joseph 
Lawrence  to  James  Price.  This  reference  establishes  the  antiq- 
uity of  that  deed.  It  shows  that  it  was  in  existence  more  than 
50  years  ago.  In  my  judgment  the  antiquity  of  both  deeds  is 
fully  established. 

But  the  mere  fact  that  a  deed  is  ancient  will  not  of  itself 
warrant  the  presumption  that  it  is  genuine  and  entitled  to  be 
admitted  in  evidence.  Even  according  to  the  English  rule,  which 
seems  to  be  somewhat  more  indulgent  tiuin  that  prevailing  in  this 
country,  it  is  required  that,  in  a^-ldition  to  proof  of  antiquity, 
there  shall  be  evidence  that  the  deed  comes  from  the  proper  cus- 
tody or  depository  to  justify  its  admission  in  evidence.  Lord 
Ellenborough,  in  Koe  v.  Rawlings,  7  East,  279,  291,  said: 
"  Ancient  deeds  proved  to  have  been  found  among  deeds  and 
evidences  of  land,  may  be  given  in  evidence,  although  the 
execution  of  them  cannot  be  proved ;  and  the  reason  given  is 
that  it  is  hard  to  prove  ancient  things,  and  the  finding  them  in 
such  a  place  is  a  presumption  they  were  fairly  and  honestly 
obtained,  and  reserved  for  use,  and  are  free  from  suspicion 
of  dishonesty."  Stated  in  sub>tance,  the  rule  given  by  Phillips 
is  this:  If  an  instrument  is  30  years  old,  and  is  proved  to 
have  come  from  a  proper  place  of  custody,  it  may  be  admitted 
in  evidence  without  any  i)roof  of  its  execution.  Such  an  in- 
strument is  said  to  prove  itself.  2  Phil.  Ev.  485.  There  is 
proof  in  this  case  that  the  deeds  under  consideration  came  from 
the  proper  custody.  A  son  of  James  Johnson,  to  whom  the 
land  in  controversy  was  conveyed  in  1836,  and  who  retained  the 
title  until  1880,  swears  that  he  saw  the  deeds  in  his  father's  pos- 
session as  far  back  as  he  can  remember.  He  was  38  years  old 
at  the  time  he  testified.  He  also  said  that  he  had  seen  the  deeds 
frequently  during  his  father's  life,  and  looked  them  over,  but 
would  not  say  that  he  had  ever  read  them  entirely  through.  He 
was  sure,  however,  that  they  were  the  same  two  deeds  which  he 
had  seen   in   his   father's  possession,  because  of  certain  distin- 


DUAL  CHARACTER  OF  COMMON  CONVEYANCES.     615 

tinguishing  marks  which  he  mentioned,  and  also  because  he 
found  them  among  his  father's  papers  after  his  father's  death. 
He  also  testified  that  he  delivered  the  deeds  to  the  persons  who 
afterwards  passed  them  to  the  defendant.  The  foregoing  sum- 
mary shows,  I  think,  that  three  facts  tending  to  demonstrate  the 
authenticity  of  the  deed  may  be  considered  proved  :  First.  That 
the  deed  had  been  in  existence  for  nearly  100  years.  Second. 
The  possession  of  the  deed  by  James  Johnson,  to  whom  the  land 
was  conveyed  in  1836,  warrants  the  belief  that,  whenever  the  title 
to  the  land  changed,  the  deed  was  delivered  to  the  person  taking 
title  as  a  muniment  of  his  title.  And,  thirtU  there  have  been  three 
different  assertions  of  title  to  the  land  under  the  deed,  —  the  first 
in  1790,  when  Lawrence  conveyed  to  Price  ;  the  second  in  1813, 
when  Price  conveyed  to  Price;  and  the  third  in  1836,  when 
Price  conveyed  to  Johnson.  The  first  of  these,  — that  which 
was  made  in  1790,  —  it  will  be  observed,  was  made  so  near  the 
time  when  the  deed  on  trial  was  executed  that  it  is  highly  prob- 
able John  Curtis  heard  of  it.  It  is  scarcely  possible  to  believe 
that  he  did  not.  He  was  then  living  in  the  neighborhood  where 
the  transaction  occurred.  He  did  not  die  until  1812  or  1813. 
The  deed  of  1790  was-  executed  in  the  presence  of  three  wit- 
nesses. This  fact  shows  that  no  effort  was  made  to  conceal  its 
execution,  but  the  effort  was  rather  in  the  opposite  direction,  — 
to  give  publicity  to  it.  Such  transactions,  even  at  this  day,  in 
sparsely-populated  neighborhoods,  attract  public  attention,  and 
form  the  subject  of  conversation  wherever  men  meet.  This  was 
undoubtedly  the  case  in  1790,  when  such  transactions  were  much 
less  frequent  than  they  are  now,  and  when  they  doubtless  excited 
much  greater  general  interest  than  they  do  now.  It  thus  appears, 
as  I  think,  that  when  we  come  to  take  an  account  of  the  proba- 
bilities of  the  case,  the  mind  is  naturally  led  to  believe,  from  the 
facts  in  evidence,  that  John  Curlis  must  have  heard  of  the  con- 
veyance of  1790,  and  that  he  did  not  attempt  to  defeat  it,  be- 
cause he  knew  that  Joseph  Lawrence,  in  conveying  the  land,  had 
simply  done  what  he  had  a  lawful  right  to  do. 

The  rule  as  to  what  evidence,  in  addition  to  proof  of  antiquity 
and  that  the  deed  comes  from  a  proper  source,  is  required  to 
justify  the  admission  of  an  ancient  deed  in  evidence,  without 
proof  of  execution,  is  not  entirely  settled  in  this  country.  The 
cases  are  entirely  harmonious  to  this  extent:  that  where  posses- 
sion of  the  land  has  accompanied  the  deed,  that  fact  furnishes 
sufficient  evidence  of  its  authenticity  to  justify  its  admission, 
but,  where  possession  has  not  accompanied  the  deed,  the  cases 
are  not  entirely  agreed  as  to  what  proof,  other  than  proof  of 
possession,  will  be  sufficient  to  justify  its  admission,     Piofessor 


Gl(3  TITLE    BY    GRANT. 

Greenleaf  says  that  where  possesnion  has  not  accompanied  the 
deed,  to  justify  its  admission  there  must  be  other  equivalent  or 
explanatoiy  proof.  1  Greenl.  Kv.,  §  144.  The  rule  as  thus 
stated  seems  to  have  met  the  a{)j)roval  of  Chief  Justice  Green ; 
for,  in  Osborne  v.  Tunis,  25  N.  J.  Law,  033,  ()()3,  he,  in  etlect, 
said:  The  presum[)tion  that  an  ancient  deed  is  genuine  only 
arises  in  ca^e  the  deed  comes  from  the  proper  depository  and  is 
accompanied  and  followed  by  j)os8ession,  or  in  case  there  is  no 
other  collateral  proof  to  wairant  the  belief  that  the  deed  is  gen- 
uine. Chief  Justice  Bronson,  in  Wilson  v.  Bt'tts,  4  Denio,  201, 
213,  215,  said  that  other  facts  besides  possession  might  bo  suffi- 
cient to  raise  the  presumption  that  an  ancient  deed  was  genuine, 
but  he  thought  that  nothing  would  justify  such  presumption  but 
acts  done  under  the  deed  or  the  recognition  of  its  validity  by 
those  having  an  interest  in  the  other  direction.  What  is  called 
'*  explanatory  "  or  "  collateral  proof  "  in  some  of  the  cases  was 
defined  in  Jackson  v.  Laroway,  3  Johns.  Cas.  283,  285,  as  follows : 
Such  account  must  be  given  of  the  deed  as  may  reasonably  be 
expected  under  all  the  circumstances  of  the  case,  and  as  will 
afford  a  presumption  that  it  is  genuine.  This  definition  has  been 
approved  in  several  cases.  2  Phil.  Ev.  (4th  Amer.  Ed.)  475, 
note  430,  by  Cowan  &  Hill.  The  Supreme  Court  of  the  United 
States,  speaking  by  Judge  Story,  held,  in  Barr  v.  Gratz,  4 
Wheat.  213,  221,  that  where  a  deed  is  more  than  30  years  old, 
and  is  proved  to  have  been  in  the  possession  of  the  lessors  of 
the  plaintiff  in  ejectment,  and  actually  asserted  by  them  as  the 
ground  of  their  title  in  a  chancery  suit,  it  is,  in  the  language  of 
the  books,  sufficiently  accounted  for,  and  it  is  admissible  in  evi- 
dence without  regular  proof  of  its  execution.  The  rule,  as  thus 
stated,  was  reiterated  by  the  same  court  in  Coulson  v.  Walton,  9 
Pet.  70,  72.  The  proof  in  support  of  the  authenticity  of  the 
deed  on  trial  comes  up,  in  my  jutlgment,  to  the  required  standard. 
Such  an  account  has  been  given  of  it  as  was  reasonably  to  be  ex- 
pected under  the  circumstances  of  the  case,  and  as  leads  natu- 
rally to  the  presumption  that  it  is  genuine.  Neither  party  has 
shown  possession;  on  the  contrary,  both  admit  that  the  land  has 
been  vacant  for  a  century,  so  that  possession  speaks  neither  for 
nor  against  the  deed.  But  the  proofs  show  that  just  such  use 
has  been  made  of  it,  and  that  just  such  claims  have  been  made 
under  it,  as  would,  in  the  usual  and  ordinary  course  of  such  trans- 
actions among  men  at  a  very  early  day,  have  been  made,  had  the 
persons  dealing  with  it  known  it  to  be  an  honest  paper.  It  has  been 
dealt  with,  treated,  and  preserved  as  an  honest  and  valid  paper. 
In  addition  to  this,  as  I  think,  the  paper  bears  on  its  face  strong 
evidence  of  its  integrity.     In  my  judgment,  it  should  be  admit- 


DIUL    CHARACTER   OF   COMMON    CONVEYANCES.  617 

ted  in  evidence,  and  full  effect  given  to  it.  There  is  an  inter- 
lineation appaient  on  the  faa)  of  the  deed.  This,  it  is  said,  so 
greatly  discredits  it  that  no  effect  should  be  given  to  it.  As 
originally  drawn,  the  deed  described  the  land  conveyed  as  that 
undivided  half  of  the  one-seventh  of  Sqan  beach  which  David 
Curtis  left  to  his  son  John,  without  saying  whether  tlie  half 
which  it  conveyed  was  the  hi  If  of  that  seventh  which  Elisha 
Lawrence  had  conveyed  to  the  testator,  or  the  half  of  the  seventh 
conveyed  to  the  testator  by  Benjamin  Lawrence.  The  half  of 
the  seventh  conveyed  to  the  testator  by  Benjamin  Lawrence,  it 
will  be  remembered,  was  devised  to  John  absolutely,  with  an 
immediate  right  to  possession,  while  the  whole  of  the  one-seventh 
conveyed  to  the  testator  by  Elisha  Lawrence  was  devised,  in  the 
first  instance,  to  Elisha  Curtis,  and  the  heirs  of  his  body  lawfully 
begotten,  with  a  liniitation  over  to  John  of  the  one-half  of  that 
seventh,  in  case  Elisha  Curtis  did  not  have  an  heir  of  his  body. 
As  originally  drawn,  the  deed  described  the  land  which  it  con- 
veyed as  that  half  of  an  undivided  seventh  of  Sqan  beach  which 
David  Curtis  left  to  his  son  John.  With  this  description  un- 
changed, there  can  be  no  doubt,  I  think,  that  the  deed  would 
have  passed  that  half  of  the  one-Beventh  in  which  John  had  a 
present  absolute  estate,  and  not  the  half  of  the  other  seventh  in 
which  his  estate  was  liable  to  be  defeated  by  the  birth  of  issue 
to  his  brother  Elisha.  The  interlineation  changed  this  descrip- 
tion, and  made  the  deed  say  that  the  land  which  it  passed  was 
the  half  of  that  seventh  part  of  Sqan  beach  which  David  Curtis 
bought  of  Elislia  Lawrence  by  deed  bearing  date  July  9,  1770. 
The  effect  of  the  interlineation  was  to  change  entirely  the  land 
upon  which  the  deed  was  to  operate,  and  to  pass  the  grantee  an 
estate,  which,  though  vested,  was  nevertheless  subject  to  a  life- 
estate,  and  liable,  in  addition,  to  be  completely  destroyed  by 
the  birth  of  a  child,  instead  of  a  present  absolute  estate  which 
no  future  event  could  defeat.  This  fact  would  seem  to  make  it 
as  certain  as  anything  can  be,  in  the  absence  of  convincing  proof 
to  the  contrary,  that  neither  the  grantee  nor  anyone  claiming 
under  him  inserted  the  interlineation  after  the  delivery  of  the 
deed.  As  to  the  land  in  dispute,  the  complainant's  bill  must  be 
dismissed. 


618  THE  REQUISITES  AND  C03IPONENT  PARTS  OF  A  DEED. 


CHAPTER    XXII. 

DEEDS  — THEIR  REQUISITES   AND    COMPONENT   PARTS,  INCLUDING 
COVENANTS  OF  TITLE. 

Buckey  v.  Buckey,  38  W.  Va.  168;   18  S.  E.  .383. 

Babcock  v.  CoUius,  CO  Minn.  73;  fil  N.  W.  1020. 

Booker  v.  Tarwater,  138  Ind.  385;  37  N.  E.  979. 

Drentzer  v.  Baker,  60  Wis.  179;   18  N.  W.  776. 

Wronkow  v.  Oakley,  133 N.  Y.  505;  31  N.  E.  621. 

O'Neil  V.  Webster,  150  Mas-.  572;  23  N.  E.  235. 

Mageew.  Allison, —  Iowa  — ;  G3N.  W.  322. 

Miller  V.  Meers,  155  IlL  284;  40  N.  E.  577. 

Goodpaster3  ?;.  Leathers,  123  lud.  121;  23  N.  E.  1090. 

Lindley  v.  Martindale,  78  Iowa,  37U;  43  N.  W.  233. 

Smith  V.  Westall,  70  Tex.  509;   13  S.  W.  540. 

Lake  Erie  &  W.  Ry.  Co.  v.  Whitham,  155  111.  514;  40  N.  1014. 

■      Oakes  v.  DeLancev,  133  N.  Y.  227;  30  N.  E.  974. 

Miller  v.  Topeka  La'nd  Co.,  44  Kan.  3.54;  24  P.  420. 

Emeric  v.  Alvarado,  90  Cal.  444 ;  27  P.  356. 

Probettv.  Jeukinson,  — Mich.  — ;  63  N.  W.  648. 

Prentice  v.  N.  Pac.  Ry.  Co.,  154  U.  S.  163. 

Doren  v.  Gilluna,  136  Ind.  134;  35  N.  E.  1101. 

Gould  V.  Howe,  131  III.  490;  23  N.  E.  602. 
Copelandw.  McAdorv,  lOOAla.  553;    13  So.  545. 
Eversole  v.  Early,  80  Iowa,  601;  41  N.  W.  897. 
Kinac  v.  Kilbride,  58  Conn.  109;   19  A.  619. 
Allen  V.  Kennedy,  91  Mo.  324;  2  S.  W.  142. 
Post  V.  Weil,  115  N.  Y.  361  ;  22  N.  E.  145., 


Capacity  of  Grantor  to   Convey. 

Buckey  v.  Buckey,  38  W.  Va.  168:  18  S.  E.  383. 

Appeal  from  circuit  court,  Randolph  County;  Willian  T.  Ice, 
Judge. 

Action  by  John  J.  Buckey  against  Charles  N.  Buckey,  and 
two  actions  by  the  same  plaintiff  against  Alpheus  Buckey,  to  set 
aside  three  conveyances  of  land.  The  three  cases  were  tried  to- 
gether, and  plaintiff  had  decree  annulling  two  of  the  conveyances. 
Charles  N.  Buckey  appeals.     Reversed  in  part. 

BiiANNON,  J.  John  J.  Buckey  brought  three  suits  in  equity 
in  Randolph  circuit  court,  —  one  against  Charles  N.  Buckey, 
to  annul  a  deed  made  by  George  Buckey  to  Charles  N.  Buckey, 
and  two  against  Alpheus,  to  annul  two  deeds  made  by  George 
Buckey  to  Alpheus  Buckey  —  and,  by  a  decree  made  in  the 
three  causes  heard  together,  the  deed  to  Charles  N.  Buckey 
and  one  of  the  two  made  to  Alpheus  Buckey  were  annulled. 
Charles  N.  Buckey  appeals.  John  J.  Buckey,  in  brief  of  coun- 
sel, alleges  error  in  the  failure  of  the  decree  to  cancel  the  other 


CAPACITY  OF  GRANTOR  TO  CONVEY.  619 

deed  to  Alpheus  Buckey,  and  asks  that  iu  that  respect  the  decree 
be  reversed. 

The  grouiid  of  attack  upon  these  deeds  is  incapacity  in  George 
Buckey,  from  old  age,  to  nitke  them.  He  died  in  1888,  aged 
92  years.  On  8epteml)er  10,  1883,  when  87  years  old  he  made 
a  deed  to  Charks  N.  Buckey,  convoying  iibout  twenty  acies  of 
laud,  on  which  stood  a  mill,  C'hiules  N.  Buckey,  being  a  gr.ind- 
child,  only  son  of  Emmet  Buckey.  On  September  18,  1880, 
George  Buckey  made  to  his  son  Alpheus  a  deed  conveying  to 
him  a  parcel  of  laud  embracing  his  residence  and  tanyard.  On 
October  30,  1883,  George  Buckey  conveyed  to  this  same  son, 
Al[)heus,  a  parcel  of  seven  acres  of  hmtl  and  one-half  of  two  lots 
in  the  town  of  Beverly.  These  are  the  deeds  assailed  in  said 
suits.  As  it  would  answer  no  purpose  of  utility  for  future 
cases  in  a  legal  point  of  view,  I  shall  not  detail  the  many  pages 
of  evidence  bearing  on  the  mere  question  of  fact  of  the  mental 
capacity  of  George  Buckey.  Geoige  Buckey  followed,  during 
a  long  life,  the  business  of  a  tanner.  He  was  in  business,  indus- 
trious, prudent  and  successful.  He  was  moral  and  religious, 
bore  a  good  character,  and,  so  far  as  I  see,  of  regular,  plain, 
temperate  habits.  He  was  a  man  of  decided  intelligence,  and 
acquired  a  considerable  property  iu  real  estate,  though  he  was  not 
wealthy.  When  he  made  these  deeds  he  had  living  four  sons 
and  four  daughters  and  a  grandson,  the  son  of  his  dead  son.  The 
evidence  cannot  be  said  to  conflict  as  to  specific  facts,  but,  in 
o[)inion  as  to  George  Buckey's  mental  capacity  to  transact  busi- 
ness or  make  these  deeds,  the  numerous  witnesses  on  the  two 
sides  widely  differ.  I  can  hardly  say  which  on  that  subject 
might  be  said  to  have  the  preponderance.  Perhaps  in  number 
there  may  be  more  on  the  side  of  his  incapacity;  but  there  are 
nearly  as  many  on  the  other  side,  and  when  we  look  at  the  charac- 
ter of  the  evidence,  the  opportunity  and  means  of  observation,  the 
business  experience  and  capacity  of  the  witnesses  and  their  ability 
to  judge  as  to  the  party's  competency,  I  am  impressed  that  the 
evidence  to  sustain  competency  is  preponderating  in  force  and 
weight.  This  is  in  my  mind  so,  and  would  be  most  decidedly  so, 
were  it  not  for  the  evidence  of  Dr.  George  W.  Yokum,  a  long- 
time neighbor,  family  physician,  and  intimate  acquaintance  of 
George  Buckey,  who  is  settled  in  opinion  that  he  was  incapable 
of  making  the  deeds,  because  of  "  senile  dementia  intensified." 
But  there  is  the  son  of  Dr.  George  W.  Yokum,  Dr.  Humboldt 
Yokum,  a  graduate  of  Jefi^erson  Medical  College,  who  from  his 
childhood  had  known  George  Bucke}^,  raised  a  clo^e  neighbor, 
seeing  and  conversing  with  him  very  often,  and  in  July,  1882, 
made  a  settlement  of  his  father's  accounts  with    Buckey,  and 


G20      THE   REQUISITES    AND    COMPONENT   PARTS    OF   A    DEED. 

took  Bucket's  note  for  the  balance,  and  who  expresses  an 
opinion  to  the  contrary.  He  is  younger  and  less  expe- 
rienced than  his  father,  it  is  true,  but  he  seems  intelligent 
and  prudent  in  statement.  I  mention  these  witnesses  because 
they  are  physiciann,  the  only  medical  witnesses.  The  list  of 
witnesses  upholding  George  Buckcy's  mental  capacity  include 
the  clerks  of  the  two  courts,  a  former  sheriff,  two  notaries  (one 
an  attorney),  and  another  attorney,  all  close  neighbors  and  in- 
timate acquaintances,  whose  business  brought  them  in  contact 
with  all  sorts  of  men,  and  rendered  their  opinittns  of  special 
weight,  and  who  had,  through  years,  business  with  Buckey.  A 
minister  of  the  gospel,  who  was  frequently  at  his  house  about 
the  dates  of  the  deeds,  and  had  business,  social,  and  religious  con- 
versation and  intercourse  with  him,  is  also  emphatic  in  favor  of 
his  competency.  I  have  already  said  that  there  is  very  consid- 
erable opinion  evidence  to  the  contrary.  It  is  shown  that  in 
June,  1878,  George  Buckey's  wife  died,  and  it  had  a  very 
depressing  effect  ujjon  his  mind.  He  said  to  his  son-in-law,  "  I 
am  in  trouble;  I  don't  know  what  to  do."  This  is  urged  as  a 
strong  reason  to  impeach  the  old  man's  competency.  I  regard 
it  as  not  irrelevant,  but  l>y  no  means  of  decisive  or  telling  im- 
port. The  loss  in  old  age  of  the  partner  of  a  long  life  would 
naturally  cast  dark  and  lowering  clouds  over  the  old  man's 
short  remnant  of  life,  and  render  him  oftentimes,  when  brooding 
over  the  change,  vacant  and  oblivious  to  tiiose  things  of  the 
active,  busine.-s  world  engaging  the  younger,  but  shut  out  at 
times  from  him.  But  this  would  be  the  case  with  any  of  us. 
It  is  to  be  expected.  He  did  and  said  eccentric  things.  When  his 
wife  had  been  laid  in  her  coffin  for  burial,  he  would  have  them 
to  lay  her  on  her  side,  and,  a  daughter  having  had  the  corpse 
changed  back  to  its  former  position,  he  came  into  the  room  and 
did  not  seem  to  notice  it.  He  stated  that  he  was  in  Washington 
and  saw  Guiteau  and  President  Garfield,  when  the  latter  was 
dead,  and  that  Guiteau  was  a  bad-looking  man.  He  was  not  at 
W^ashinston  at  all.  This  lamentable  occurrence,  the  murder  of 
President  Garfield,  possessed  the  mind  of  every  person,  month 
after  month,  during  the  illness  of  the  president  and  the  trial  of 
his  assassin.  Is  it  strange  that  it  engrossed  this  aged  man's 
thoughts?  It  is  an  observed  fact,  entirely  consistent  with  suf- 
ficiency of  intellect  to  execute  a  valid  deed,  that  the  old  frequently 
mistake  fancy  for  reality,  thinking  they  remember  things  never 
reallyinthememory  as  facts, but  wholly  the  creation  of  imagination. 
On  one  occasion,  standing  on  the  new  bridge  over  Valley  river, 
he  asked  where  the  bridge  was,  and  was  told  he  was  on  it  already, 
and  that  the  old  bridge  had  been  burnt,  when  he  remarked  that 


CAPACITY    OF    GRANTOR    TO    CONVEY.  621 

lie  might  find  it  lower  clown  the  river,  and  went  in  search  of 
it,  soon  returning,  seeming  to  have  recalled  his  recollection. 
He  would  sometimes  be  found  swee[)ing  out  the  old  stable, 
.saying  he  was  going  to  stable  horses  in  it,  though  it  was  disused 
and  roofless,  and  supplanted  by  a  new  one  near  f)y.  He  remem- 
bered the  old  familiar  bridge  and  stable  so  fixed  upon  his  memory 
through  years  long  gone.  They  inhered  in  his  memory  yet,  and 
overcame  his  recollection  of  the  new.  It  is  common — quite 
usual  —  for  the  aged  to  remember  the  imiiressions  and  things  of 
their  long  ago,  and  forget,  for  the  titne  until  they  are  specially 
recalled  to  their  minds,  recent  occurrences.  Sometimes,  though 
not  often,  this  aged  man  would  be  found  wandering  listlessly, 
somewhat  vacantly,  about  his  field  near  the  town,  and  through  the 
streets  of  the  town  of  Beverly.  There  is  nothing  of  much  signifi- 
cance in  this.  Ho  had  for  years  labored  in  tiiis  field  and  walked 
the  village  streets  among  his  neiglibors,  and  he  was  still  follow- 
ing his  old  walks  and  habits.  When  thus  walking  on  one. occa- 
sion, when  his  family  wished  him  to  come  in,  he  became  petu- 
lant, seeming  to  resent,  as  old  people  sometimes  do,  any  hint 
that  he  was  not  himself  as  in  days  gone  by.  On  another  occasion 
he  was  found  cutting  weeds  on  the  op[)osite  side  of  the  street 
from  his  house,  seeming  not  to  know  it,  and,  when  his  attention 
was  called  to  it,  he  at  once  returned  across  the  street.  He  some- 
times bade  a  colored  woman  living  in  his  house  good-bye,  say- 
ing he  was  going  to  Frederick  City,  and  then  go  to  the  t;tnyard 
and  return.  Sometimes  he  would  tell  her,  when  it  was  raining, 
to  take  the  doors  from  the  outhouses;  that  they  would  get  wet. 
At  times  he  would  talk  incoherently,  especially  in  later  years, 
after  these  deeds  were  made,  and  in  an  instance  or  two  failed 
to  recognize  an  old  acquaintance,  but  his  sight  was  bad,  and 
this  is  common  in  age.  When  he  was  told  who  the  person 
was,  he  seemed  to  sharply  recall  him,  saying,  "  Why,  is  this 
Arch  Chenowith?"  I  have  given  succinctly,  the  chief  part,  if 
not  all,  of  the  peculiar  conduct  of  George  Buckey,  summoned 
in  aid  of  the  effort  to  overthrow  his  capacity.  Strange  conduct 
we  may  say  it  is.  Eccentricity,  or  rather  the  idiosyncrasies  of 
this  peculiar  person,  they  are,  indicating,  we  may  admit,  failing 
powers  under  the  hand  of  years  of  one  who  had  walked  so 
tar  down  the  other  side  of  the  hill  of  hfe;  but  with  all  this 
there  is  evidence  to  show  continued  good  sense,  intelligent 
conversation  and  discrimination,  while  the  conduct  above  spoken 
of  is  occasional,  only. 

The  strange  actions  just  mentioned  do  not  go  far  enough; 
they  do  not  drown  the  excellent  intelligence  and  common  sense, 
the  industry  and  careful  earning  and  management  of  property 


(522  THE  REQUISITES  AND  COMl'ONH.NT  PARTS  OK  A  DEED. 

which  characterized  liis  h)iig  life.  They  do  not  deprive  tiiis  sen- 
sible, worthy  man  of  the  right  to  bestow  his  property  as  he 
wi>hed.  Here  we  must  reinoniber  certain  iegid  princi|)les.  Amid 
all  this  evidence,  pio  and  contra,  they  come  in  with  the  force  of 
a  casting  vote,  and  sustain  the  validity  of  these  deeds.  If  we 
I'xdc  anywhere  we  shall  find  it  laid  down  as  law,  partic- 
ularly in  Jarrett  v.  Jarrett,  11  W.  Va.  584,  and  Kerr  v. 
Lunsford,  31  W.  Va.  6(51;  8  S.  E.  493,  that  "old  age 
is  not  in  itself  sufficient  evidence  of  incapacity  to  make 
a  deed  ;  "  and  that  the  presumption  of  law  is  always  in  favor  of 
the  sanity,  at  the  time  the  deed  was  executed,  of  a  person  whose 
deed  is  brought  in  question;  the  burden  of  proof  is  on  him  who 
asserts  insanity,  uidess  a  previous  condition  of  insanity  has  been 
established.  Jarrett  v.  Javveitj  sujmi ;  Anderson  v.  Cranmer,  11 
W.  Va.  562,  584;  Hiett  v.  Shull,  36  W.  Va.  563;  15  S.  E.  146. 
"  This  presumption  is  universal,  and  is  not  defeated  by  common 
report  or  reputation,  or  the  imputation  of  friends  or  relatives, 
or  the  old  age  or  feebleness  of  the  subject,  or,  in  short,  by  any 
cause  except  controlling  evidence  produced."  Busw.  Insan.,  § 
159.  The  principle  is  sound  in  itself,  and  settled  as  a  rule,  that 
in  the  absence  of  fiaud,  imposition,  or  undue  influence,  mere 
weakness  or  feebleness  of  understanding  is  not  sufficient  to  over- 
throw the  party's  deed.  Aiman  v.  Stout,  42  Pa.  St.  114  ;  Cain 
y.  Warford,  53  Md.  23;  Miller  v.  Craig,  36  III.  109;  Maddox  v. 
Simmtjns,  31  Ga.  512,  528;  2  Lomax  Dig.  298;  Chancellor 
Kent,  in  Van  Alst  v.  Hunter,  5  Johns.  Ch.  160.  Here  I  will 
say  that  no  evidence  shows,  or  tends  to  show,  any  fraud,  undue 
influence,  or  even  importunity,  on  the  part  of  these  grantees. 
Though  alleged  in  the  bills,  there  is  not  the  slightest  proof, 
and  no  contention  of  that  kind  is  in  the  brief  of  counsel. 
The  mental  weakness  must  go  further  than  it  does  in  this 
case.  The  mysterious  action  of  the  person  whose  act  was 
involved  in  Mercer  v.  Kelso,  4  Grat.  106,  went  beyond  that  in 
this  case.  "  No  degree  of  physical  or  mental  imbecility  which 
does  not  deprive  the  party  of  legal  competency  to  act  is,  of 
itself,  sufficient  to  avoid  his  contract."  Farnham  v.  Brooks,  9 
Pick.  212.  It  must  go  so  far  as  to  disable  him  from  knowing 
and  understanding  the  nature  and  effect  of  his  act.  2  Minor 
Inst.  572  ;  Bish.  Cont.,  §  962.  His  mind  may  be  weak  and  de- 
bilitated as  compared  to  what  it  once  was,  the  memory  of  things 
enfeebled,  the  understanding  weak,  the  character  and  demeanor 
eccentric,  and  he  may  not  have  capacity  to  transact  all  the  ordi- 
nary business  of  life,  still,  if  he  understands  the  nature  of  the  act 
he  does,  recollects  the  property  he  is  disposing  of,  and  the  per- 
son to  whom  he  grants  it,  and  how  he  desires  to  dispose  of  it, 


CAPACITY    OF    GliANTOR    TO    CONVEY.  623 

his  act  is  valid.     Nicholas  v.  Kershner,  20  VV,  Va.  251  ;  Kerr  v. 
LuMsford,  31  \V.  Va.  6(32  ;  8  S.  E.  493. 

The  case  shows  that,  most  of  all  things,  George  Buckcy  would 
rememher  his  pl■opert^^  This  is  bolh  likely  aud  appears  in  the 
case.  As  showing  that  he  knew  his  property  and  the  objects  of 
his  bounty  and  the  nature  of  his  acts,  these  deeds  do  not  reflect 
the  scheme  of  Alpheus  and  Charles  N.  Buckey,  but  the  sedate, 
deliberate,  and  long-entertained  design  of  George  Buckey  him- 
self. Time  and  again,  for  25  years  before  these  deeds,  he  said 
he  intended  to  give  his  home  property  to  Alpheus,  and  the  mill 
property  to  Emmet  Buckey.  These  declarations  are  admissble 
on  the  question  of  competency  (Dinges  v.  Branson,  14  W.  Va. 
100,  118),  and  tend  to  show  capacity  (Whart.  &  S.  Med.  Jur., 
§  87).  If  crazy,  he  wonderfully  retained,  and  finally  executed 
to  the  letter  his  long-contemplated  purpose.  He  said  he  in- 
tended to  keep  Alpheus  with  him  as  long  as  he  lived;  that 
Alpheus  was  kind  and  good  to  him.  Alpheus  remained  with 
him  till  his  death,  while  all  the  other  children  went  off  to  do  for 
themselves.  He  stated  that  Alpheus  had  lived  with  and  cared 
for  him  all  his  life.  He  advanced  his  other  children,  or  most  of 
them,  considerable  amount^,  and  he  left,  outside  these  convey- 
ances, a  farm  and  other  real  estate  of  considerable  value.  As 
further  showing  strongly  that  he  knew  what  he  was  doing,  wit- 
ness his  caution  as  to  the  mill  property.  Many  years  before  he 
placed  Emmet  in  possession  of  it,  and  he  carried  on  milling 
business  there,  and  George  Buckey  always  declared  he  intended 
the  mill  for  him.  About  one  year  before  the  deed  was  made, 
the  old  man  sj)oke  to  Mr.  Jones  about  drawing  the  deed,  but 
told  him  he  wanted  to  run  lines  between  the  mill  tract  and  one 
adjoining,  and  engaged  to  meet,  and  met,  eJones  on  the  ground, 
had  the  surveying  done  preparatory  to  the  deed,  and  directed 
what  land  was  to  go  into  it.  He  at  first  said  he  intended  to  make 
the  deed  to  Emmet;  but  Emmet  became  embarrassed  financially, 
and  with  some  reluctance,  in  a  deliberate  conversation  with  Jones, 
at  last  determined  to  make  the  deed  to  Emmet's  only  son,  Charles 
N.,  saying  he  had  been  a  good  boy,  and  had  been  of  great  ser- 
vice to  him.  When  the  deed  was  read  he  declared  it  was  correct. 
He  had  Mr.  Wilson  write  one  of  the  deeds  he  made  to  Alpheus, 
and  a  deed  conveying  two  lots  to  a  daughter,  Mrs.  Currence.  He 
asked  Wilson  if  he  had  the  calls,  and,  he  replying  that  he  had 
not,  he  told  who  had  conveyed  the  property,  so  that  he  could 
from  the  convevance  ^ei  the  calls.  Wilson  sug^orested  that  he 
change  his  plan  as  to  what  lots  he  would  convey  to  Mrs.  Cur- 
rence and  what  to  Alpheus,  but  he  refused  to  depart  from  his 
plan,  giving  good  reason  for  it.     And   observe  the  prudence, 


G24         THE    REQUISITES    AND    COMPONENT    TAliTS    OF    A    DEED. 

favoring  his  own  safely,  evinced  l)y  the  deeds  themselves.  The 
deed  to  Charles  N.  Buckey  and  that  to  Ali)heiis  for  the  tanyard 
and  home  reserve  a  life  estate  and  full  control  to  George  Buokcy 
for  his  life  ;  and  in  the  otlier  deed  to  Ali)heus  he  made  a  chaige 
of  $250  in  favor  of  another  son,  Marteny,  vvlio  he  said  had  not 
received  much.  Another  consideration  is  of  great  weight  in 
favor  of  George  Buckey's  capacity.  The  two  notaries  who  took 
his  acknowledgments  state  that  he  was  competent  to  make  the 
deeds.  There  is  no  showing  by  any  one  present  at  their  execu- 
tion that  at  that  time  he  was  not  competent.  It  has  often  been 
laid  down  that  the  very  time  of  the  factum  of  a  deed  is  the  crit- 
ical point  of  time  for  inquiry  as  to  the  capacity  of  the  party 
making  it.  "The  evidence  of  witnesses  present  at  the  execution 
of  a  deed  is  entitled  to  peculiar  weight."  Jarrett  v.  Jarrett,  11 
W.  Va.  584;  Anderson  v.  Cranmer,  Id.  502;  Nicholas  v.  Kersh- 
ner,  20  W.  Va.  251;  Beverly  v.  Walden,  20  Grat.  147,  158.  In 
Beckwith  v.  Butler,  1  Wash.  (Va.)  286,  it  was  held  that  the 
evidence  of  the  subscribing  witness  as  to  competency  to  make  a 
deed  was  "chiefly  to  be  regarded,"  and  President  Pendleton 
spoke  approvingly  of  a  case  in  the  Virginia  court  of  appeals, 
where  it  overcame  all  other  testimony  before  and  after  execution 
of  the  will.  No  taint  or  savor  of  incapacity  is  imputed  to 
George  Buckey  save  on  account  of  old  age.  It  has  become  quite 
common  for  interested  relatives  to  assail  the  disposition  made 
by  aged  persons  of  their  property.  He  gave  to  Alpheus  Buckey 
and  Emmet's  son,  and  perhaps  Mrs.  Currence,  because  he  had 
not  advanced  them,  and  because  they  had  remained  near  him 
and  with  him  many  years  after  they  become  adult,  while  others 
had  gone  far  away.  They  had  done  much  to  rock  the  cradle  of 
reposing  age.  He  said  so  on  many  occasions,  especially  as  to 
Alpheus.  Whart.  &  S.  Med.  Jur.,  §  87,  warns  us  "  that  great 
caution,  indeed,  should  be  used,  lest  the  existence  of  extreme 
old  age  should  lead  the  medical  witness  to  presume  consequent 
imbecility."  Chancellor  Kent  said  in  Van  Alst  v.  Hunter,  5 
Johns.  Ch.  159:  "  It  is  one  of  the  painful  consequences  of  ex- 
treme old  age  that  it  ceases  to  excite  interest,  and  is  apt  to  be 
left  solitary  and  neglected.  The  control  which  the  law  still 
gives  to  a  man  over  the  disposal  of  his  property  is  one  of  the 
most  efficient  means  which  he  has  in  protracted  life  to  command 
the  attentions  due  to  his  infirmities.  The  will  of  such  an  aged 
man  ought  to  be  regarded  with  great  tenderness,  when  it 
appears  not  to  have  been  procured  by  fraudulent  arts,  but 
contains  those  very  dispositions  which  the  circumstances 
of  his  situation  and  the  course  of  natural  affection  dic- 
tated."    Our  conclusion   is  to  reverse  so  much  of  the  decrees 


DESCRIPTION   OF   AND   SIGNATURE   BY   GRANTOR.  fi25 

as  annuls  the  deed  to  Charles  N.  Buckey,  and  dismiss  the  bills 
filed  to  annul  it,  and  to  refuse  to  reverse,  but,  on  the  contrary, 
to  affii  m  that  portion  of  the  decree  in  the  first  case  dismissing 
the  bill  filed  by  John  J.  Buckey  to  annul  the  deed  to  Alpheus 
Buckey,  dated  September  15,  1880. 


Description  of   and   Signa,ture  by  Grantor. 

Babcock  v.  Collins,  60  Minn.  73;  61  N.  W.  1020. 

Appeal  from  district  court,  Anoka  County  ;  Seagrave  Smith, 
Judge. 

Action  by  Phoenix  Babcock  and  others  against  Martin  F.  Col- 
lins and  others  to  have  a  deed,  through  which  defendants  claim 
title,  declared  void  and  for  partition.  From  an  order  sustaining 
a  demurrer  to  the  complaint,  plaintiffs  appeal.     Affirmed. 

Canty,  J.  This  is  an  appeal  from  an  order  sustaining  a 
demurrer  to  the  complaint,  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  com- 
plaint alleges  that  one  Francis  M.  Babcock  died  testate,  in 
1872,  and  was  at  the  time  of  his  death  the  owner  of  an 
undivided  one-tenth  of  certain  real  estate  in  Anoka  County; 
that  thereafter,  on  April  4,  1872,  his  last  will  was  duly 
probated  in  the  surrogate  court  in  New  York  County,  iu 
the  State  of  New  York,  where  he  resided  at  the  time  of  his 
death;  that  Phoenix  Babcock,  one  of  these  plaintiffs,  and  one 
John  Babcock,  were  the  executors  named  in  said  will,  and  that 
they  then  duly  qualified  as  such  executors;  that,  by  the  terms 
of  said  will,  said  executors  were  given  authority  at  any  time, 
whenever  they  deemed  it  advisable,  to  sell  and  convey  the  real 
estate  left  by  said  testator,  or  any  part  thereof;  that  thereafter, 
on  the  23d  of  June,  1875,  said  executors  made  a  deed  of  said 
land  to  one  Thompson,  which  deed  is  set  out,  and  by  its  terms  it 
is  the  deed  of  "  John  Babcock  and  Phoenix  Babcock,  executors 
of  the  last  will  and  testament  of  Francis  M.  Babcock,  deceased, 
parties  of  the  first  part,"  to  Thompson,  and  it  is  signed,  "  John 
Babcock,  One  of  the  Executors  of  the  Last  Will  and  Testament 
of  Francis  M.  Babcock,  Deceased,"  and  by  Phoenix  Bab- 
cock in  the  same  way.  The  deed  recites  that  it  is  made 
in  consideration  of  one  dolhir,  and  the  complaint  alleges 
that  no  consideration  whatever  was  paid  for  it,  but  that 
it  was  procured  by  Thompson  from  the  executors  by  means 
of  false  pretenses.  It  sufficiently  appears  that  the  defend- 
ants claim  title  through  this  deed  and  subsequent  to  con- 
veyances.    A   part   of   the    land  has    been  platted  and  sold  as 

40 


()2()        THE    REQUISITES    ANU    COMPONENT    PARTS    OF    A    DEED. 

town  lots,  and  thoro  iiro  foity-five  defendants.  The  plaintiff's 
arc  the  devisees  under  the  will.  It  is  further  ailef^ed  that  on 
July  6,  1891,  said  will  was  duly  admitted  to  probate  in  said 
county  of  Anoka,  in  this  State,  and  that  there  are  no  debts 
against  said  estate.  The  prayer  of  the  complaint  is  that  said 
deed  from  the  executors  to  Thompson  bo  set  aside  and  declared 
void,  and  that  the  real  estate  be  partitioned  between  plaintiffs 
and  the  defendants,  who  are  owners  of  the  other  nine-tenths  of 
the  same. 

2.  The  appellants  contend  that  the  deed  from  the  executors 
to  Thompson,  having  been  made  before  the  will  was  probated  in 
this  State,  and  before  the  executors  had  qualified  and  received 
letters  testamentary  from  a  probate  court  in  this  State,  is  void. 
On  the  other  hand,  the  respondents  contend  that  the  will,  having 
been  since  probated  in  this  State,  relates  back,  and  takes  effect 
from  the  time  of  the  death  of  the  testator,  and  validates  the 
execution  of  the  deed.  Section  17,  c.  47,  Gen.  St.  1878,  pro- 
vides that  "  no  will  shall  be  effectual  to  pass  either  real  or  per- 
sonal estate  unless  it  is  duly  proved  and  allowed  in  the  probate 
court."  However,  it  is  well  settled  that  the  probate  of 
a  will  relates  back  and  ghves  effect  to  a  deed  made  by  a 
devisee  before  the  probate.  But  it  does  not  follow  that 
such  probate  will  relate  back  and  give  effect  to  the  deed  of  an 
executor  who  acts  merely  as  a  trustee.  Section  2,  c.  50,  Gen. 
St.  1878,  provides  that  before  entering  on  the  execution  of  his 
trust,  and  before  letters  are  issued  to  him,  an  executor  shall  give 
bonds  ;  and  section  5  provides  that,  if  he  neglects  to  accept  the 
trust  and  give  bonds  for  20  days  after  the  probate  of  the  will, 
he  shall  not  intermeddle  or  act  as  executor.  At  common  law, 
an  executor  could  do  nearly  all  acts  under  the  will  before  it  was 
proved  that  he  could  do  afterwards,  and,  when  the  will  was 
proved,  it  related  back  and  cured  his  acts.  1  Williams  Ex'rs 
(6th  Am.  Ed.),  p.  347,  c.  1,  §  2.  But  this  is  not  the  law  in  the 
American  States  having  statutes  similar  to  ours.  3  Redf .  Wills, 
21.  See,  also,  Wiswell  v.  Wiswell,  35  Minn.  371;  29  N.  W. 
166.  But  this  will  was  probated  in  the  State  of  New  York  be- 
fore the  deed  in  question  was  made,  though  not  in  this  State 
until  afterwards.  The  provisions  of  our  statute  above  quoted 
certainly  do  not  apply  with  full  force  to  the  case  of  a  foreign 
will  duly  probated  at  the  place  of  the  domicile  of  the  testator  in 
another  State,  or  the  executor  duly  appointed  by  the  proper 
court  at  that  place.  It  is  well  settled  that,  as  far  as  the  per- 
sonal estate  is  concerned,  such  foreign  executor  has  a  right  to 
intermeddle  with  the  property  and  choses  in  action  found  in  this 
State  without  proving  the  will  or  procuring  letters  in  this  State, 


DESCRIPTION    OF    AND    SIGNATUKK    BY    GRANTOR  627 

unless  ancilliuy  {idininistration  in  this  Stale  is  demanded  by 
some  local  ciedilor  or  claimant  entitled  to  demand  it.  And  ex- 
cept where  there  are  paramount  local  rights,  such  as  those  of 
local  creditors,  the  law  of  the  foreign  domicile  controls  in  the 
disposition  of  the  personal  property.  Putnam  v.  Pitney,  45 
Minn.  242;  47  N.  W.  790;  1  Redf.  Wills,  *397,subsec.  7,  note 
4;  Id.  *409,  subsec.  19,  20;  Whicker  v.  Hume,  7  H.  L.  Cas. 
124  ;  Douglas  v.  Cooper,  3  Mylne  &  K.  378  ;  Enohin  v.  Wylie, 
10  H.  L.  Cas.  1.  Our  statute  expressly  recognizes  the  right  of 
a  foreign  executor  thus  to  intermeddle  in  the  estate  found  in  this 
State.  Section  6,  c.  77,  Gen.  St.  1878  (section  5917,  Gen.  St. 
1894),  provides  that  he  may  prosecute  an  action  in  this  State  in 
his  capacity  as  foreign  executor  if,  before  commencing  the 
same,  he  files  in  the  probate  court  of  the  county  in  which  the 
action  is  commenced  an  authenticated  copy  of  his  appointment 
as  such  executor;  but  it  neither  requires  him  to  prove  the  will 
nor  obtain  letters  in  this  State.  But,  while  the  statutory  pro- 
hibitions above  quoted  do  not  apply  to  such  foreign  executor,  it 
does  not  follow  that  he  has  any  power  or  authority  over  the  real 
estate  in  this  State.  While  the  personal  estate  is  thus  to  be 
disposed  of  according  to  the  law  of  the  foreign  domicile,  the 
disposal  of  the  real  estate  is  governed  wholly  by  tlie  law  of  the 
State  in  which  it  is  situated.  But  our  statute  clearly  recognizes 
as  valid  and  indisputable  a  foreign  will  thus  duly  probated  at  the 
foreign  domicile,  and  the  proceedings  by  which  it  is  probated  in 
this  State  are  mostly  a  matter  of  form. 

Chapter  47,  Gen.  St.  1878,  contained  the  following  sections  :  — 

*'  Sec.  18.  All  wills,  duly  proved  and  allowed  in  any  of  the 
United  States,  or  in  any  foreign  country  or  State,  according  to 
the  laws  of  such  State  or  country,  may  be  allowed,  filed  and  re- 
corded in  the  probate  court  of  any  county  in  which  the  testator 
has  real  or  personal  estate  on  which  such  will  may  operate,  in 
the  manner  mentioned  in  the  following  section. 

*'  Sec.  19.  When  a  copy  of  such  will  and  the  probate  thereof, 
duly  authenticated,  is  produced  by  the  executor,  or  other  persons 
interested  in  such  will,  to  the  probate  court,  such  court  shall 
appoint  a  time  and  place  of  hearing,  and  notice  shall  be  given 
in  the  same  manner  as  in  the  case  of  an  original  will  pre- 
sented for  probate. 

"  Sec.  20.  If,  on  hearing  the  case,  it  appears  to  the  court  that 
the  instrument  ought  to  be  allowed  in  this  State,  as  the  last  will 
and  testament  of  the  deceased,  the  copy  shall  be  filed  and  re- 
corded, and  the  will  shall  have  the  same  force  and  effect  as  if  it 
had  been  originally  proved  and  allowed  in  the  same  court." 

These     are     substantially     sections     17,     18,     and     19     of 


628      THE    REQUISITES    AND    COMPONENT   PARTS    OF   A    DEED. 

chapter  02  of  the  Revised  SlatuLes  of  Massachusetts  of  1836, 
after  sectioo  19  thereof  was  amcndetl  by  chapter  92  of 
Statutes  of  1843  striking  out  a  proviso  that  the  .statute  should 
DOt  be  so  construed  as  to  make  valid  any  will  not  cxocuted, 
attested  and  subscribed  according  to  the  laws  of  that  State. 
After  this  amendment,  the  Massachusetts  court  hold  that  the 
statute  gave  the  same  force  and  effect  to  a  foreign  will  as  to  a 
domestic  will,  if  made  according  to  tlie  laws  of  the  State  or 
country  where  it  was  executed  or  probated,  though  not  accord- 
ing to  the  laws  of  Massachusetts,  and  that  such  foreign  probate 
was  conclusive.  Crii)pen  v.  Dexter,  13  Gra\\  332.  However, 
it  is  not  necessary  here  to  decide  whether  or  not  this  court 
would  hold,  as  that  court  did  in  that  case,  that  such  foreign 
probate  is  conclusive  where  the  law  of  such  foreign  domicile 
required  no  notice  of  probate  and  none  was  given.  But,  at 
least,  where  such  foreign  probate  was  properly  a  proceeding 
i)i  rem,  our  statute  makes  it  conclusive  as  to  the  validity  of  the 
will,  and  the  proceeding  to  probate  it  in  this  State  is  much  in 
the  nature  of  a  suit  on  a  foreign  judgment.  Not  only  is  the 
foreign  probate  conclusive,  but,  as  we  construe  it,  the  amend- 
ment added  to  section  21  of  chapter  47  by  chapter  64  of  the 
General  Laws  of  1870  made  the  right  of  the  foreign  executor 
conclusive  also.  That  amendment  is  as  follows:  "  Letters  tes- 
tamentary or  letters  of  administration  with  the  will  annexed 
may  issue  to  a  foreign  executor  or  administrator  with  the  will 
annexed,  though  not  a  resident  of  this  State,  upon  filing  a  duly 
authenticated  copy  of  his  appointment  and  the  l)ond  given  by 
him  in  the  State  or  country  in  which  it  was  originally  {)roved ; 
provided  that  the  judge  of  probate  before  issuing  such 
letter,  may,  in  his  discretion,  require  him  to  give  bondsi  as  in 
other  cases."  Before  this  amendment,  and  since  the  repeal  of 
it  by  the  Probate  Code,  the  foreign  executors  had  a  right  to 
appointment  upon  the  ancillary  probate  here,  unless,  for  some 
good  reason,  the  probate  court,  in  the  exercise  of  its  discretion, 
should  refuse  to  appoint  him.  See  In  Re  Hardin's  Estate 
(filed  this  term),  61  N.  W.  1018.  Then  this  amendment  must 
have  been  passed  to  give  the  foreign  executor  a  more  conclu-ive 
right.  As  we  construe  this  amendment  "may"  meant 
♦'  must;  "  and  when  the  foreign  will  was  probated  at  the  domi- 
cile and  the  foreign  executor  was  there  appointed,  his  right  to 
appointment  here  was  conclusive  on  giving  the  bond,  if  one  was 
requiied  by  the  probate  court. 

The  power  to  sell  this  real  estate  was  not  given  by  the  court, 
but  by  the  will  itself,  and  is  regulated  as  much  or  more  by 
chapter  44,  Gen.  St.  1878  (sections  4301-4361,  Gen.  St.  1894), 


DESCRIPTION    OF    AND    SIGNATURE    BY    GEtANTOR.  629 

relating  to  powers,  as  by  chapter  47,  Gen.  St.  1878,  relating  to 
wills,  or  chapter  50,  Id.,  relating  to  executors.  Under  our 
statutes  as  they  stood  before  the  adoption  of  the  Probate  Code, 
it  seems  to  us  that  after  the  will  was  conclusively  established 
by  the  foreign  probate  and  the  executor  qualified  at  the 
ff)reign  domicile,  he  could,  subject  to  the  rights  of  local  cred- 
itors, make  a  sale  under  the  power  in  the  will,  which  would  be- 
come effectual  when  the  formal  act  of  probating  the  will  here 
was  performed.  The  execution  of  a  power  in  a  will  does  not 
stand  on  the  same  footing  as  the  execution  of  a  power  given 
by  the  law.  The  power  in  a  will  is  contractual,  not  statutory. 
See  Holcombe  v.  Richards,  38  Minn.  b8  ;  35  N.  W.  714,  for  an 
illustration  of  this  distinction.  When  a  power  in  a  will  is  de- 
fectively executed,  equity  will  decree  its  pi  oper  execution.  Sec- 
tion 57,  c.  44,  Gen.  St.  1878  (section  4357,  Gen.  St.  1895);  1 
Slory  Eq.  Jur.,  §§  170-175  ;  2  Pom.  Eq.  Jur.,  §  834.  In  the 
case  of  Newton  v.  Bronson,  13  N.  Y.  587,  the  executor  of  a  last 
will  probated  in  New  York,  and  containing  a  power  of  sale 
authorizing  him  to  sell  the  testator's  real  estate  in  Illinois,  made 
an  executory  agreement  to  sell  the  same.  The  court  sustained 
an  action  for  specific  performance  of  the  agreement.  In  the 
opinion  by  Dcnio,  C.  J.,  it  is  said:  "It  is  argued  that  the 
defendant's  ofBce  of  executor  does  not  extend  to  the  lands  in 
Illinois  upon  the  prineif)le  that  letters  testamentary  and  of  ad- 
ministration have  no  force  beyond  the  juiisdiction  in  which  they 
are  granted.  Schultzv.  Pulver,  11  Wend.  372.  Hence  it  is  said 
the  defendant  cannot  eftectually  perform  the  judgment  of  the 
Sui)reme  Court,  not  being  able,  as  is  slated,  tt>  affect  the  title  to 
lands  out  of  this  State.  But  the  authority  of  the  defendant  ia  re- 
spect to  real  estate  is  not  conferred  by  the  probate  court.  He  is  the 
donee  of  a  power  at  common  law  and  under  the  statute;  and 
although  it  was,  by  the  will,  made  a  condition  to  his  acting  under 
the  power  that  he  should  qualify  as  executor,  when  he  has  per- 
formed that  condition  he  acts  in  conveying  the  land  as  the  devisee 
of  a  povver  created  by  the  owner  of  an  estate,  and  not  under  an 
authority  conferred  by  the  surrogate,"  — citing  Conklin  v.  Eger- 
ton,  21  Wend.  430,  436.  While  the  execution  of  such  a  power 
will  be  aided  in  equity,  the  defective  or  partial  execution  of  a 
power  created  by  law  will  not.  2  Pom.  Eq.  Jur.,  §  834.  If  the 
defective  execution  of  a  power  in  a  will  is  thus  aided  by  a  court 
of  equity,  surely  such  defective  execution  must  be  good  when  it 
is  cured  without  such  aid.  The  deed  here  in  question  was  but  a 
defective  execution  of  the  povver,  but  we  are  of  the  opinion  that 
the  subsequent  probate  of  the  will  in  this  State  related  back  and 
cured  the  defect.     As  said  by  Judge  Story  in  Ex  parte  Fuller,  2 


630      THE   REQUISITES    AND    COMPONENT   I'AliTS    OF    A    DEED. 

Story,  333;  Fed.  Cas.  No.  5147,  in  discussing  the  Massachusetts 
statute,  which  is  the  same  as  ours  (section  17,  c.  47):  "The 
section  only  provides  that  no  will  shall  l»o  effectual  to  pass  real 
estate  unless  it  shall  have  been  duly  proved,  not  tnitil  it  shall 
have  been  duly  pioved."  And  ho  held  in  that  ca.-c  that>  on 
being  proved,  it  related  back  and  gave  effect  to  the  ])rior  con- 
veyance. See,  also,  Spring  v.  Parknuin,  12  Me.  127.  In  tiie 
case  of  Richards  v.  Pierce,  44  Mich.  444;  7  N.  W.  54,  after  the 
v\rill  was  probated  and  the  executor  appointed  at  the  foreign 
domicile,  he  brought  an  action.  It  was  held  that  the  subsequent 
probate  of  the  will  in  Michigan  related  back  so  as  to  enable 
him  to  maintain  it.  In  the  case  of  Crusoe  v.  Butler,  36  Miss. 
150,  the  facts  are  very  similar  to  the  facts  in  the  case  at  bar, 
and  it  was  held  that,  after  the  will  was  probated  at  the  foreign 
domicile,  real  estate  in  Mississippi  could  be  sold  under  the 
power  of  sale,  and  that,  when  the  will  was  subsequently  pro- 
bated in  that  State,  it  related  back  and  perfected  the  sale.  It 
was  held  that,  **  when  the  will  was  admitted  lo  record  in  this 
State,  it  was  merely  for  the  purpose  of  authenticating  the  evi- 
dence by  which  the  special  power  was  established,  and  of  render- 
iiiij  the  prior  ri^ht  available  here." 

It  does  not  ap[)ear  by  the  complaint  that  letters  testamentary 
were  ever  issued  in  this  S'ate  to  the  executors.  For  the  reason 
above  stated,  we  are  of  the  o[iinioa  that  it  was  not  necessary  to 
issue  such  letters  to  perfect  the  ])rior  exercise  of  the  power  of 
sale.  At  common  law,  the  executor  named  in  the  will  could 
exercise  the  power  of  sale  of  which  he  was  the  donee,  though  he 
refuse  the  administration.  See  Conldin  ?;.  Egertons,  21  Wend. 
430,  and  cases  cited.  So,  also,  at  common  law,  a  sale  of  per- 
sonal property  by  an  executor  before  the  ])roof  of  the  will  was 
cured  by  such  proof,  though  he  never  qualified,  but  died  before 
the  will  was  proved.  3  Dyer,  367  ;  Brazier  v.  Hudson,  8  Sim. 
67.  We  are  of  the  opinion  that  the  subsequent  probating  of  the 
will  in  this  State  related  back  and  perfected  the  deed  in  question. 

It  is  urged  by  appellants  that  the  deed  does  not  appear  to  be 
the  deed  of  the  executors  as  such,  but  merely  their  deed  as 
individuals  ;  that  they  did  not  sign  it  as  executors,  or  so  desig- 
nate themselves  in  the  body  of  the  deed.  It  fairly  appears  that 
they  intended  to  make  the  deed  in  their  representative  capacitv. 
See  section  50,  c.  44,  Gen.  St.  1878  (section  4350,  Gen.  St. 
1894);  Warner  v.  Insurance  Co.,  109  U.  S.  366;  3  Supt.  Ct. 
221;    18  Am.  &  Eng.  Enc.  Law,  931,  notes. 

The  deed  puri)orts  to  have  been  exeeuted  in  consideration  of 
one  dollar,  and  it  is«urged  by  the  appellants  that  for  this  reason 
it  is  void  on  its  face,  being  made  by  trustees  in  their  represent- 


DESIGNATION    OF    GKANTEE    IX    DEED.  631 

alive  capacity.  Whatever  might  be  said  as  to  such  a  deed,  if  it 
appeared  that  tlie  property  attempted  to  be  conveyed  by  it  was 
at  the  time  valuable,  and  ))arties  interested  had  promptly  re[)udi- 
ated  it,  this  is  not  such  a  case.  This  deed  was  made  for  a  one- 
tenth  interest  in  80  acres  and  two  government  lots.  It  might 
have  been  a  parlilion  deed,  "which  the  parties  interested  have  i)ro- 
cured  or  ratified.  This  deed  was  recorded  in  1877,  and  re- 
mained of  record  unquestioned  thereafter  until  this  action  was 
brought.  Conceding,  without  deciding,  that  the  nominal  con- 
sideration expressed  in  it  was  a  sufficient  circumstance,  for  some 
reasonable  time  after  it  was  made  and  recorded,  to  \n\t  a  pur- 
chaser on  inquiry,  that  time  has  long  since  passed.  After  it  had 
remained  of  record  for  some  years  unquestioned,  a  person  about 
to  purchase  under  it  had  a  right  to  conclude  that  there  was  no 
vice  in  the  deed ;  that  a  sufficient  consideration  had  in  fact  been 
paid,  or  it  would  have  been  attacked  within  a  reasonable  time  ; 
and  he  was  justified  in  relying  upon  it.  It  is  not  claimed  that 
these  defendants  had  any  knowledge  that  there  was  any  fraud 
in  the  tiansaction,  unless  the  face  of  the  deed  was  sufficient  to 
put  them  on  their  guard,  and  we  are  of  the  opinion  that  after 
such  reasonable  time  it  was  not.  The  fact  that  plaintiffs  did 
not  know  until  the  last  three  or  four  years  that  the  deed  had 
been  procured  by  fraud  is  no  reason  why  they  should  not  be 
estopped  as  against  innocent  purchasers. 

The  order  appealed  from  should  be  affirmed.      So  ordered. 


Designation   of    Grantee   in   T>eed. 

Booker  v.  Tarwater,  138  Ind.  385;  37  N.  E.  979. 

McCabe,  J.  The  appellants  sued  the  appellee  for  partition 
of  real  estate  in  Sullivan  County.  Upon  the  issues  formed, 
there  was  trial  by  the  court  without  a  jury  and  upon  pr(»per 
request  the  court  made  a  special  finding  of  the  facts,  and  stated 
its  conclusion  of  law  in  favor  of  the  appellee,  whereon  he  had 
judgment.  It  is  contended  that  the  court  erred  in  its  conclusion 
of  law,  and  this  is  the  only  error  assigned. 

The  substance  of  the  special  finding  is:  That  on  January  24, 
18G5,  Bazzle  Carrico  was  the  owner  in  fee  simple  of  the  land  in 
controversy  (describing  it),  and  that  his  wife,  Francis,  was  liv- 
ing at  the  time.  That  at  that  time  they  had  a  son  living,  named 
Francis  Carrico,  who  had  three  children  living,  named,  respect- 
ively, Maiy  J.,  Truston,  and  Frankie,  aged  six,  four,  and  one 
years,  then  living  with  their  father.  That  on  that  day  said  Bazzle 
and  wife  made  a  deed  purporting  to  convey  said  real  estate  "  to 


G32       Till':  KEQUISITKS    ANI>    COMPONENT    PARTS    <JF    A    DEED. 

Francis  Carrico's  heirs,"  which  deed  was  duly  acknowledged  and 
filed  in  tlio  proper  recorder's  oflico  on  the  same  day  (by  whom  it 
was  so  filed  being  undisclosed),  and  it  was  recorded  August  9, 
1867.  That,  "wlieii  said  dcd  was  so  left  in  the  recorder's  office, 
said  Franc  is  Carrico  and  his  family,  consisting  of  his  three  infant 
chil(h-en  and  wife  (their  mother),  moved  upon  and  took  posses- 
sion of  said  lands,  and  farmed  the  same  cleared  parts  thereof, 
and  continued  to  so  occupy  the  same  until  April  5,  1869.  That 
Truston  Carrico  died  in  1875,  intestate,  leaving  surviving  him, 
as  his  only  heir  at  law,  his  father  and  mother,  said  Francis  Car- 
rico and  wife,  and  his  sisters,  Mary  J.  and  Frankie.  That  on 
September  5,  1875,  said  Mnvy  J.  Carrico  intermarried  with  Henry 
Booker,  and  is  the  Mary  J.  Booker  who  is  one  of  the  plaintiffs 
(appellants).  That  said  Frankie  on  August  16,  1884,  inter- 
married with  the  plaintiff  Robert  Whitlock,  and  they  had  born 
to  them,  as  the  only  iss^e  of  said  marriage,  one  child,  viz.,  Liz- 
zie Whitlock,  one  of  the  plaintiffs  (appellants  herein).  That  said 
Frankie  died  intestate  at  said  county  in  1890,  leaving  as  her 
only  heirs  said  Robert,  surviving  husband,  and  said  child  Lizzie. 
That  said  Mary  J  ,  Robert,  and  Lizzie  have  not,  nor  have  either 
of  them,  conveyed  any  interest  in  said  real  estate  to  any  person 
or  persons.  That  on  April  5,  1869,  said  Francis  Carrico,  son 
of  said  Bazzle,  claiming  to  be  the  owner  of  said  lands  by  virtue 
of  said  deed  from  said  Bazzle  Carrico  and  wife  to  the  heirs  of 
said  Francis  Carrico,  executed  a  warranty  deed  (his  wife  joining 
therein),  for  a  valuable  consideration,  purporting  to  convey 
said  lands  to  Josiah  Carrico,  who  went  into  possession  and  oc- 
cupied, claiming  title  to  said  land  under  said  deed,  until  Febru- 
ary 10,  1870,  when  be  and  his  wife  executed  a  warranty  deed 
purporting  to  convey  the  same  to  Fountain  Land.  That  said 
Land  went  into  possession,  claiming  title  under  said  deed,  until 
the  13th  day  of  November,  1872,  when  he  executed  a  warranty 
deed  (his  wife  joining)  purporting  to  convey  the  same  to  Josiah 
Carrico  for  a  valuable  consideration.  That  said  Josiah  Carrico 
went  into  possession  and  occupied  said  land  under  said  last- 
mentioned  deed,  claiming  title  thereunder,  until  the  26th  day 
of  September,  1874,  when  he  executed  a  deed  to  John  Crance 
(his  wife  joining  therein),  purporting  to  convey  said  lands  to 
said  Crance  for  a  valuable  consideration.  That  said  Crance 
went  into  possession  and  occupied,  claiming  to  own  the  same  by 
virtue  of  said  deed,  until  the  23d  day  of  August,  1875,  on 
which  day  he  made  a  warranty  deed  (his  wife  joining  therein) 
purporting  to  convey  said  lands  to  William  G.  Carrico 
for  a  valuable  consideration.  That  he  went  into  possession, 
occupied,  and  claimed  to  be  the  owner  of  said  land  by  virtue  of 


DESIGNATION   OF    GRANTEE   IN   DEED.  633 

said  deed,  until  the  13th  day  of  June,  1879,  when  he  made  a 
quitclium  deed  (his  wife  joininjj^  therein)  ])urporting  to  convey 
said  lands  to  William  A.  Neal  for  a  valuable  consideration. 
That  said  Neal  went  into  possession  thereof,  and  while  in 
possession  he  caused  an  abstract  of  title  to  said  lands 
to  be  made ;  and  said  Neal  was  advised  that  he  did  not 
have  a  good  title,  legally,  to  said  lands  by  virtue  of  said 
deed,  because  the  deed  of  Bazzle  Carrico  and  wife  to  the  heirs 
of  said  Francis  Carrico  was  void.  That  said  Neal  thereupon, 
pursuant  to  the  advice  of  his  attorney,  for  the  purpose  of 
perfecting  his  title  to  said  lands,  and  securing  a  good  legal  title 
thereto,  procured  all  the  legal  heirs  of  said  Bazzle  Carrico,  then 
deceased,  excepting  Andrew  L.  Carrico,  James  H.  Carrico,  Sarah 
E.  Purcell,  and  Francis  Carrico,  to  execute  quitclaim  deeds  pur- 
porting to  convey  their  undivided  interests  in  said  lands  to  said 
Neal.  That,  further  to  complete  and  perfect  his  legal  title  to 
said  lands,  said  Neal,  on  the  13th  day  of  June,  1879,  instituted 
a  suit  against  said  Andrew  L.  Carrico,  James  H.  Carrico,  and 
Sarah  E.  Purcell,  heirs  at  law  of  Bazzle  Carrico,  deceased,  in  the 
Sullivan  circuit  court;  said  Neal  claiming  and  alleging  in  his 
complaint  in  said  suit  that  he  and  the  said  Andrew  L.  and  James 
H.  Carrico  and  Sarah  E.  Purcell  were  the  owners  of  all  said 
lands,  as  tenants  in  c(mimon, —  the  said  Neal  the  owner  of  39/42 
thereof,  in  fee,  as  purchaser  thereof  from  the  heirs  of  said  Baz- 
zle Cairico,  and  each  of  the  then  defendants  the  owner  of  1/42 
part  thereof,  in  fee,  as  heirs  of  said  Bazzle  Carrico,  deceased. 
That  such  proceedings  were  had  in  said  suit  that  said  court  ad- 
judged said  facts  to  be  true  as  alleged  in  said  complaint,  and  that 
said  lands  could  not  be  divided  without  injury  to  the  owners 
thereof;  and  the  same  were  sold,  under  the  order  of  the  court, 
to  said  Neal,  by  a  commissioner  appointed  by  the  court  for  that 
purpose,  who  executed  a  deed  pursuant  to  said  sale,  which  was 
approved  and  confirmed  by  the  court.  And  said  Neal  there- 
upon continued  in  possession,  occu|)icd,  and  claimed  to  own  said 
lands  by  virtue  of  his  deeds  from  William  G.  Carrico,  as  remote 
grantee  of  Francis  Carrico,  as  heir  of  said  Bazzle  Carrico,  from 
the  other  said  heirs  and  widow  of  said  Bazzle  deceased,  and  from 
said  commissioner,  until  the  22d  of  January,  1880,  when  he 
(said  Neal)  executed  a  warranty  deed  (his  wife  joining  therein) 
purporting  to  convey  said  lands  to  John  H.  Driver,  who  took 
possession,  occupied  the  same  under  claim  of  ownership  by 
virtue  of  said  deed  from  said  Neal  until  the  30th  day  of  May, 
1882,  when  he  executed  a  like  deed  to  another,  who,  in  like 
manner,  took  possession  under  said  deed,  and  occupied,  claiming 
to  own  said  lands  by   virtue  thereof;  and  thereafter,   through 


634       THE    liEQUISlTES    AND    COMl^ONENT    PAUTS    OF    A    DEED. 

numerous  mesne  conveyances  from  said  Ncal,  each  grantee  going 
into  possession  under  claim  of  ownership  until  the  21st  day  of 
August,  1891,  the  then  holder  under  said  mesne  conveyances 
executed  a  warranty  deed  purporting  to  convey  said  hinds  to  the 
appellee,  William  TarwaU;r,  for  a  valuable  consideration,  who 
also  took  possession  under  said  deed,  and  now  holds  possession 
of  said  lands,  claiming  title  thereto  by  virtue  of  said  deed. 
That  each  and  all  of  said  deeds  were  duly  reconled  in  the 
recorder's  office  of  said  county  within  the  time  allowed  by  law 
therefor.  That  said  Bazzle  Cariico  died  in  said  county  in  1870, 
and  that  said  Francis  Carrico  had  no  grandchildren  living  on 
January  24,  1865,  and  no  other  children  living,  than  said  Mary, 
Truston,  and  Frankie.  That  said  Truston  at  no  time  conveyed 
any  interest  in  said  lands.  That  said  Francis  Carrico  died  in 
1886,  intestate.  The  conclusion  of  law  stated  upon  these  facts 
is  *'  that  the  defendant  [the  appellee]  is  the  owner  of  the  lands 
set  out  and  described  in  the  com{)laint,  and  entitled  to  the  pos- 
session thereof,  and  that  the  plaintiffs  [the  appellants]  take 
nothing  by  their  complaint  herein." 

The  question  that  lies  at  the  threshold  of  the  case  is  whether 
the  deed  from  Bazzle  Carrico  to  "  Francis  Carrico' s  heirs  "  con- 
vej^ed  any  interest  in  the  land  to  anybody.  Strange  as  it  ma^ 
seem,  counsel  for  appellants  simply  assert  in  their  brief  thai 
*'  the  deed  from  Bazzle  Carrico  to  '  Francis  Carrico's  heirs,'  of 
date  January  24,  1865,  conveyed  the  lands  in  controversy  t<> 
Francis  Carrico's  children."  No  authority  is  cited  to  support 
this  proposition,  nor  is  there  any  attempt  to  support  it  by  argu- 
ment. Appellee's  counsel  seems  to  take  it  for  granted  that 
such  a  deed  is  valid  and  effectual  to  convey  title  to  the  children 
of  Francis  Carrico,  and  seeks  to  support  the  conclusion  of 
the  trial  court  on  the  solo  the  ground  of  adverse  possession 
under  claim  of  ownership  in  appellee  and  his  grantors  for 
more  than  twenty  years  prior  to  the  commencement  of  the 
action.  Ordinarily,  twenty  years  after  the  right  of  action 
accrues  for  the  possession  of  real  esttite,  under  the  twenty-years 
statute,  is  a  complete  bar  to  such  action,  without  such  possession 
having  been  adverse.  Rev.  St.  1881,  §  293;  Rev.  St.  1894,  § 
294;  Vanduyn  v.  Hepner,  45  Ind.  589.  But  it  has  been  held  by 
this  court  that  such  defense  does  not  apply  to  an  action  for  par- 
tition. Peden  v.  Cavins,  134  Ind.  494;  34  N.  E.  7;  McCray  v. 
Humes,  116  Ind.  103;  18  N.  E.  500.  It  has  also  been  held  by 
this  court  that  twenty  years'  adverse  possession  not  only  bars  the 
action  for  possession,  but  also  confers  as  complete  a  title  as  a 
written  conveyance,  even  against  a  tenant  in  common,  where  the 
tenant  in  possession  denies  the  right  of  his  cotenant,  and  asserts 


DESIGNATION    OF   GRANTEE   IN   DEED.  635 

a  hostile  title.  Bower  v.  Preston,  48  Iiid.  367,  and  cases  there 
cited.  The  theory  of  the  appellant  is,  we  presume,  that  the 
deed  to  Francis  Carrico's  heirs  vested  the  title  in  his  three  chil- 
dren, and  one  of  them  Truston,  having  died  in  1875,  in  infancy, 
unmarried,  and  without  lawful  issue,  one-half  of  his  third  of  the 
land  descended  to  his  father,  Francis,  and  that  thereupon  the 
warranty  deed  previously  executed  l)y  said  Francis,  by  which  he 
attempted  to  convey  the  whole  of  said  lands  to  Josiah  Carrico, 
inured  to  the  benefit  of  said  Josiah,  vesting  in  him,  by  estoppel, 
that  undivided  one-sixth  of  said  lands  ;  and  so  on,  with  each 
successive  giantee,  down  to  the  appellee.  It  is  settled  law 
that,  by  virtue  of  a  warranty  deed  to  the  grantee,  his  heirs 
and  assigns  may,  by  estoppel  and  direct  operation  of  law,  become 
vested  with  a  title  acquired  by  the  grantor  after  the  execution  of 
the  deed.  19  Am.  &  Eng.  Enc.  Law,  1020-1022,  and  numer- 
ous authorities  there  cited.  Hannah  v.  Collins,  94  Ind.  201 ; 
Loche  V.  White,  89  Ind.  492;  Avery  v.  Akins,  74  Ind.  293. 
Whether  this  is  the  way  appellants  conclude  that  the  appellees 
became  clothed  with  the  four  twenty-fourth  parts,  which  is  one- 
sixth  of  said  lands,  their  counsel  have  not  seen  fit  to  inform  us. 
But  we  see  no  other  way  by  whieh  appellees  can  take  any  interest 
in  said  lands,  if  appellants'  assumption  is  correct  that  the  deed  to 
Francis  Carrico's  heirs  clothed  the  appellants  with  title,  unless 
adverse  possession  for  20  years  clothed  appellee  with  the  whole 
title.  But  it  seems  to  us  tiiat  appellants  have  been  altogether 
too  generous,  in  conceding  to  appellee  the  ownership  of  the  one- 
sixth,  or  any  other  portion,  of  these  lands,  if  the  deed  to  Francis 
Carrico's  heirs  vested  the  title  thereto  in  his  children.  Assum- 
ing that  it  did  so  vest  the  title,  and  conceding  that  the  warranty 
deed  of  Francis  Carrico  to  Josiah  Carrico,  attempting  to  convey 
to  the  latter  the  whole  of  the  lands  in  1869,  inured  to  the 
benefit  of  said  Josiah  and  his  grantees,  on  the  death  of 
Truston,  one  of  the  children  of  Francis,  by  which  one-half  of 
Truston's  third  descended  to  his  father,  said  Francis,  yet  such 
principle  could  operate  no  further  than  the  deeds  in  tlie  chain 
of  title  continued  to  be  deeds  containing  covenants  of  war- 
ranty, or  warranty  deeds.  The  deed  from  Josiah  Carrico  to 
Crance  is  not  shown  to  be  the  warranty,  and  the  same  is  true  of 
the  deed  from  William  G.  Carrico  to  William  A.  Neal.  A  deed 
must  be  shown  to  be  a  warranty  deed,  aflarmatively,  before  it  can 
be  held  to  operate  as  a  transfer  of  an  after-acquired  title. 
Nicholson  v.  Caress,  45  Ind.  479.  A  quitclaim  deed  cannot  have 
that  effect.  Avery  v.  Atkins,  74  Ind.  283;  Graham  v.  Graham, 
55  Ind.  23;  Shumaker  v.  Johnson,  35  Ind.  33.  If  the  special 
finding  is  correct  and  full,  —  and  appellants,  by  excepting  to  the 


63(5  THK    UKQUISITKS    AND    COMPONENT    PARTS    OF    A    DEED. 

conclusion  of  hiw,  admit  that  it  id  .so,  —  and  if  theif  assumption 
that  the  deed  from  Francis  Carrico's  heirs  vested  in  them  title 
to  the  hind,  tlicn  they  had  no  cause  for  partition  a«:ainst  the 
appellee,  for  he  owuecl  no  part  of  interest  in  the  land,  unless  he 
owned  it  all,  by  20  years'  possession  by  liimself  and  grantors. 
If  ho  owned  it  at  all,  by  20  years'  possession,  then  the  appel- 
lants had  no  cause  for  partition  against  him.  If  he  did  not  own 
it  at  all,  bv  20  years'  occupancy,  and  api)ellants'  assumption  be 
correct  us  to  the  effect  of  the  deed  of  Bazzlo  Carrico,  then  appel- 
lants had  no  cause  for  partition  against  api)ellee,  but  rather  a 
cause  of  action  for  possession.  As  before  ol)Served,  that  action 
is  easier  defeated  by  20  years'  continuous  possession  than  it  is  to 
defeat  a  suit  for  partition  by  such  possession.  That  may  account 
for  the  seemmg  too  great  generosity  of  appellants  in  planting 
their  suit  on  the  theory  that  appellee  owned  one-sixth  interest 
in  the  land,  and  asking  for  partition,  instead  of  bringing  an 
action  for  possession. 

The  conclusion  we  shall  reach  as  to  the  effect  of  the  deed  from 
Bazzlo  Carrico  makes  it  wholly  unnecessary  to  decide  whether 
the  facts  found  make  a  case  of  20  years'  adverse  possession  in 
appellee  and  his  grantors,  thereby  vesting  in  him  title,  and  what 
effect  his  grantors'  purchase  of  the  supposed  outstanding  title 
from  the  widow  and  heirs  of  B:izzlo  Barrico  had  upon  the  adverse 
character  of  such  possession,  as  against  appellants,  so  ably  pre- 
sented in  their  brief.  Nor  need  we  decide  whether  the  facts 
found  make  a  case  of  no  tenancy  in  common,  and  hence 
whether  the  20  years'  statute  of  linjitations  applies,  and  bars 
all  right  of  appellants.  If  the  deed  from  Bazzlo  Carrico  to 
Francis  Carrico's  heirs  was  not  effectual  to  convey  title,  then  the 
title  remained  in  Bazzle,  and  at  his  death  descended  to  his  heirs, 
his  widow  and  children;  and  if  that  is  the  case  the  appellee's 
remote  grantor,  William  A.  Neal,  as  the  special  finding  shows, 
purchased  and  received  conveyances  through  deeds  from  the 
adult  heirs,  and  by  a  partition  sale  and  conveyance  of  the  inter- 
ests of  the  minor  heirs  of  said  Bazzle  in  and  to  all  of  said  lands. 
At  all  events  it  is  sufficient  to  say  that,  if  that  deed  was  invalid, 
then  appellants  have  got  no  title,  and  have  no  right  to  complain, 
no  matter  what  the  conclusion  was. 

It  was  held  by  this  court  in  Winslow  v.  Winslow,  52  Ind.  8, 
that  a  deed  to  tho  heirs  of  a  livii'.g  person,  to  take  effect  imme- 
diately, —  exactly  such  a  deed  as  the  one  here  involved,  —  was 
void.  In  Lyles  v.  Lescher,  108  Ind.  382  ;  9  N.  W.  365,  Elliott, 
J.,  speaking  for  the  court,  seriously  doubted  the  correctness  of 
the  decision  in  Winslow  v.  Winslow,  5W^?'a,  remarking  that  some 
of  the  authorities  on  which  it  was  founded  had  since  been  over- 


WANT   OF    8EAL HOW    IT    AFFECTS   VALIDITY    OF    DEED.    637 

thrown,  and  others  were  not  in  point,  but  left  the  question  open 
for  further  consideration,  without  deciding  it.  Afterwards,  in 
Outland  V.  Bowen,  115  Ind.  150;  17  N.  E.  218,  Mitchell,  J. 
(speaking  for  the  court),  directly  affirmed  the  doctrine  of  Wins- 
low  V.  Winslow,  supra.  In  the  still  later  case  of  Tinder  v.  Tin- 
der, 131  Ind.  381  ;  30  N.  E.  1077,  it  was  held  by  Elliott,  J. 
(speaking  for  the  court ),  that  this  court  was  committed  to  the 
doctrine  laid  down  in  Wiuslow  v.  Winslow,  supra,  t\\Q  court  say- 
ing: *'  But,  while  it  may  be  true  that  we  are  committed  to  the 
rule  stated,  it  is  also  true  that  the  court  has  manifested  a  pur-- 
pose  to  restrict,  rather  than  eidarge,  its  operation  ;  "  citing  Lyles 
V.  Lescher,  supra.  The  court  then  goes  on  to  hold  that  where 
there  are  any  other  words  in  the  deed,  from  which  it  may  be  in- 
ferred that  the  grantors  did  not  use  the  word  '*  heir "  or 
'*  heirs"  in  its  strict,  technical,  legal  sense,  or  that  indicate 
that  children  were  thereby  intended,  then  the  rule  does  not 
apply,  and  that  eifect  will  be  given  to  the  apparent  intent. 
But  here  there  are  no  other  words  in  the  deed  to  indicate  any 
other  intention  on  the  part  of  the  grantor  than  that  he  used  the 
word  *' heirs"  in  its  strict,  legal  sense.  He  may  have  meant 
'*  children,"  and  he  may  have  meant  "  heirs."  This  makes  it 
wholly  uncertain  as  to  wlio  the  grantees  were.  If  he  had  used 
words  in  addition  indicating  that  he  meant  children  by  the  word 
♦*  heirs,"  that  would  have  been  certain  enougli,  but  he  might 
have  meant  "  heirs"  in  the  legal  signification  of  the  word.  If 
he  did,  then,  in  addition  to  the  fact  that  a  man  cannot  have  heirs 
while  he  lives,  it  would  always  remain  a  matter  of  great  uncer- 
tainty who  the  man's  heirs  would  be  until  he  dies  ;  so  that  if  he 
meant  "  heirs,"  in  the  leojal  signification  of  the  word,  it  was  void 

•  •11 

for  uncertainty,  and  because  he  could  have  no  heirs  while  he 
lives.  But  as  we  do  not  know  whether  he  meant  "  heirs,"  in 
the  legal  signification  of  the  word,  or  *'  children,"  the  deed  is 
equally  void  for  uncertainty  in  the  grantee.  It  follows  from 
what  we  have  s:iid  that  the  legal  title  to  the  lands  in  controversy 
was  conveyed  to  the  appellee,  and  that  the  appellants  have  no 
title  whatever,  and  the  conclusion  of  law  to  that  effect  was 
correct.     The  judgment  is  affirmed. 


Want  of  Seal  —  How  it  Affects  Validity  of  Deed  and  Proof  of 

Consideration . 

Dreutzer  v.  Baker,  GO  Wis.  179;  18  N.  W.  776. 

Taylor,  J.     This  action  was  commenced  by  the  appellant  in 
justice  court  to  recover  damages  of  the  respon<lent  for  breaking 


fiSS       THE    REQUISITIES    AND    COMPONEXT    PARTS    OF    A    DEED. 

and  (Mitering  the  plaintiff's  close,  viz.:  tho  N.  E.  onc-quartcM-  of 
the  S.  E.  one-quarter  of  section  11,  townsJii|)  27,  range  2()  E  , 
in  Door  County.  The  defendant  put  in  a  plea  of  title,  and  the 
cause  was  retnoved  to  the  circuit  court.  On  the  trial  in  that 
court  the  learned  circuit  judge  directed  a  verdict  for  the  defend- 
ant, to  which  phiintiff  excepted,  and  afterwards  moved  to  set  it 
aside,  and  for  a  new  trial. 

The  learned  counsel  for  the  appellant  insists  that  the  circuit 
judge  should  have  directed  a  verdict  in  his  favor  or,  if  not, 
that  the  case  should  have  been  submitted  to  the  jury  upon 
the  evidence.  Upon  an  examination  of  the  evidence  given  on 
the  trial,  we  are  clearly  of  the  opinion  that  the  court  erred  in 
directing  a  verdict  for  tiie  defendant.  The  evidence  of  plaintiff 
shows  a  regular  chain  of  conveyances  from  the  original  patentee 
of  the  government  to  himself,  and  it  further  shows,  or  at  least 
strongly  tended  to  show,  that  he  had  been  in  the  actual  pos- 
session of  said  premises  since  the  month  of  February,  1882,  and 
that  he  was  in  fact  in  possession  of  the  same  at  the  time  the 
defendant  entered  and  did  the  damage  complained  of.  The 
only  defect  in  the  plamtifF's  title  was  that  one  of  the  inter- 
mediate conveyances  under  which  he  held  his  title,  viz. :  the  deed 
from  A.  W.  Lawrence  to  one  Charity  Pinney,  was  witnessed 
by  but  one  witness  and  was  not  sealed.  It  was  in  form,  how- 
ever, a  warianty  deed,  and  acknowledged  the  payment  of  the 
whole  consideration.  After  the  receipt  of  such  imperfect  deed 
Charity  Pinney  conveyed  by  warranty  deed  to  O.  E.  Dreutzer,  ^ 
and  ().  E.  Dreutzer  conveyed  by  quitclaim  deed  to  the  defentl-^ 
ant,  February  28,  1879;  and  claiming  title  under  such  chain 
of  conveyances,  the  evidence  strongly  tends  to  show  that  the 
defendant  took  the  actual  possession  of  said  land  in  February 
or  March,  1882,  and  retained  such  possession  until  ousted  by  the 
defendant. 

The  evidence  on  the  part  of  the  defendant  tends  to  show  that 
Baker,  the  defendant,  acting  under  the  direction  of  George 
Pinney,  made  the  entry  complained  of  under  a  claim  of  title  by 
said  George  Pinney.  The  title  proved  by  Pinney  was  a  tax  deed 
from  the  county  of  Door  to  one  J.  Leathem,  dated  November 
25,  1881,  recorded  the  same  day,  and  a  quitclaim  deed  from 
Leathem,  dated  November  26,  1881,  recorded  September  11, 
1882,  to  said  George  Pinney;  and  some  evidence  tending  to  show 
that  Pinney  took  possession  of  s.iid  hind  by  Bidder,  the  defendant, 
who  acted  under  and  for  him  some  time  in  December,  1881. 
Upon  this  showing,  notwithstanding  the  imperfect  deed  in  the 
plaintiff's  chain  of  title,  he  clearly  produced  evidence  tending  to 
show  himself  entitled  to  the  possession  of  the  land  in  dispute  as 


WANT    OF    SEAL HOW    IT    AFFECTS    VALIDITY    OF    DEED.    039 

jigjiinst  the  oriiriiuil  owiujr,  and  as  against  all  other  pei'sons  who 
could  not  show  a  better  title.  If  the  itnperfect  deed  did  not 
convey  the  legal,  it  did  the  equitable,  title,  and  the  right  to  the 
possession.  That  was  so  decided  by  this  court  in  the  case  of 
Dieulzer  v.  Lawrence,  17  N.  W.  Rep.  423. 

The  only  other  question  in  the  case  was  whether  the  evidence 
of  title  produced  by  George  Pinney  defeated  this  title  and  right 
of  possession  of  the  plaintiff.  It  is  evident  that  this  title  of 
Pinney  was  not  so  clearly  established  by  the  proofs  as  to  justify 
the  court  in  deciding  as  a  question  of  law  that  the  plaintiff's  title 
was  defeated.  The  tax  title  under  which  Pinney  makes  claim 
was  dated  and  recorded  November  25,  1881,  and  being  fair  upon 
its  face  it  was  prima  facie  evidence  of  title  in  the  grantee  and 
in  Pinney,  who  claimed  under  him.  But  the  evidence  strongly 
tended  to  show  that  the  plaintiff  went  into  the  actual  possession 
of  this  land  in  the  month  of  February,  at  any  rate  as  early  as 
the  forepart  of  March,  1882,  and  retained  such  actual  posses- 
sion until  November  10,  1882,  when  Baker,  acting  under  the 
orders  of  Pinney,  attempted  to  oust  him  from  the  possession. 
If  the  jury  had  found  this  fact  in  favor  of  the  plaintiff,  as  they 
might  have  done  had  the  question  been  submitted  to  them,  then, 
under  section  1210fZ,Rev.St.,  as  construed  by  this  court, Pinney 's 
title  under  his  tax  deed  would  have  been  defeated  under  the 
nine-months  limitation.  See  Smith  v.  Sherrv,  54  Wis.  114, 
128;  s.  c.  11  N.  VV.  Rep.  465;  Haseltine  v.  Mosher,  51  Wis. 
443;  s.  G.  8  N.  W.  Rep.  273;  Lewis  v.  Disher,  20  Wis.  504; 
Wilson  V.  Henry,  35  Wis.  241.  These  cai-ses  clearly  establif>h 
the  rule  that  the  actual  possession  of  the  lands  covered  by  the 
tax  deed  for  any  considerable  portion  of  the  three  years  or  nine 
months  limitation,  not  only  disengages  the  bar  of  the  statute  in 
favor  of  the  tax  deed,  but  creates  a  bar  against  it.  The  plain- 
tiff's evidence  tended  to  show,  if  it  did  not  positively  establish 
the  fact,  that  he  took  actual  possession  of  this  land,  claiming  to 
own  it,  on  or  about  the  1st  of  March,  1882,  and  within  four 
months  after  the  plaintiff's  tax  deed  was  recorded,  and  retained 
such  possession  until  after  the  expiration  of  the  nine  months  from 
the  recording  of  the  same,  and,  had  the  jury  so  found,  the  claim 
of  title  by  Pinney  would  have  been  entirely  defeated. 

In  an  action  like  the  one  at  bar,  when  the  defendant  pleads 
title  in  himself  as  a  defense  to  an  action  of  tres[)ass  to  realty, 
the  plaintiff  iiaving  no  opportunity  to  plead  the  statute  of  limit- 
ations in  bar  of  the  title  set  up  on  the  trial,  as  a  ground  of 
defense,  may  show,  in  repl}'-  to  the  defendant's  proof,  any  facts 
which  w'ill  avoid  and  defeat  the  title  proved  by  the  defendant, 
and    may    therefore   show  that  the  title  under  his  tax  deed  is 


640      THE   REQUISITES   AND    COMroNENT   PARTS   OF   A   DEED. 

barred  and  defeated  by  the  actual  possession  of  the  lands  covered 
by  the  tax  deed  by  the  original  owner,  for  a  greater  part  of  the 
time  during  the  nine  months  immediately  following  the  record- 
ing of  such  tax  deed.  Heath  v.  Healh,  31  Wis.  223,  228;  Mor- 
gan V.  Bishop,  5()  Wis.  284:  s.  c.  14  N.  W.  Rep.  3(59;  Gaus  v. 
Ins.  Co.,  48  Wis.  108,  115;  Waddle  v.  Morrill,  26  Wis.  611; 
Harris  v.  Moberly,  5  Bush  (Ky.),  556;  Mann  v.  Palmer,  2 
Keyes  (N.  Y.),177,  188.  Heath  v.  Heath,  supra,  was  an  action 
arising  in  a  justice  court,  and  as  a  part  of  his  answer  the  defend- 
ant set  up  a  counter-claim  or  set-off  against  the  plaintiff.  On 
the  trial  the  plaintiff  objected  to  the  evidence  of  such  counter- 
claim or  set-off  because  it  was  barred  by  the  statute  of  limita- 
tions. This  court  held  that  such  an  exception  to  the  evidence 
was  a  good  one.  The  reason  for  so  holding  is  that  in  a  justice 
court  the  only  pleadings  allowed  are  the  complaint  and  answer. 
The  plaintiff  could  not  plead  the  statute  of  limitations  to  the 
defendant's  answer,  and  was  allowed,  therefore,  to  avail  himself 
of  such  statute  upon  the  trial  by  then  showing  that  the  counter- 
claim was  barred  by  the  statute.  The  law  which  requires  a 
party  to  plead  the  statute  of  limitation?^,  in  order  to  avail  him- 
self of  its  benefit,  must  be  limited  to  cases  in  which,  according 
to  the  rules  of  pleading  prescribed  by  law,  he  has  an  oppor- 
tunity to  plead  the  same. 

The  question  as  to  whether  the  plaintiff  had  actual  possession 
of  the  lands  in  controversy  for  a  considerable  portion  of  the 
nine  months  next  after  the  recording*  of  the  tax  deed  of  Pinney, 
and  so  barred  and  defeated  such  deed  under  section  1210(i,  was 
clearly  a  question  for  the  j'iry,  and  not  for  the  court.  It  was 
error,  therefore,  to  direct  a  verdict  for  the  defendant. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  a  new  trial. 


Release  of  Wife's  Dower  by  Agent  Under  Power  of  Attor- 

ey  from  Her. 

Wronkow  v.  Oakley,  133  N.  Y.  505;  31  N.  E.  521. 

Appeal  from  supreme  court,  general  term,  first  department. 

Action  by  Henry  Wronkow  against  Hobart  Oakley  to  fore- 
close a  mortgage.  A  sale  was  made  under  foreclosure,  and  the 
purchaser  thereof,  Charles  Wolff,  filed  a  petition  asking  to  be 
relieved  from  the  purchase.  From  an  order  of  the  general  term 
reversing  an  order  of  the  special  term  denying  the  relief  sought 
(19  N.  Y.  Supp.  51)  plaintiff  appeals.     Reversed. 


RELEASE    OF    WIFE's    DOWEU    BY    AGENT.  641 

The  opinion  of  Mr.  Justice  Andrews  at  general  term  is  as 
follows  :  — 

"  The  action  was  brou^lit  to  foreclose  a  pnrchase-raoney  mort- 
gage for  $5,000,  dated  September  2,  1890.  The  action  was 
commenced  October  22,  1891,  and  judgment  of  foreclosure  and 
sale  was  entered  December  22,  1891.  By  the  terms  of  this 
judgment  the  j)reniises  were  direcled  t(»b  e  sold  subject  to  a  lease 
expiring  May  1,  1898,  and  to  a  first  mortgage  for  $17,019.22. 
The  property  was  sold  at  auction  on  January  21,  1892,  and  the 
petitioner,  Charles  Wolff,  was  the  purchaser,  for  the  price  of 
$5,(>00,  over  and  above  the  incumbrances  above  mentioned  ;  and 
said  petitioner  paid  to  the  referee  $560,  10  per  cent  on  the 
amount  of  his  bid,  tt)gether  with  the  auctioneer's  and  exchange 
fee,  and  .^ign^d  the  usual  terms  of  sale.  Subsequently  amotion 
was  made  by  the  petitioner  to  be  relieved  from  his  purchase, 
and  from  the  order  denying  such  motion  this  appeal  is  taken. 

"  It  appears  lliat  one  jNIoritz  Bauer  became  the  owner  of  the 
equity  of  redemption  of  the  mortgaged  premises,  by  deed  from 
Hobart  Oakley,  dated  Octot.er  4,  1890.  By  deed  dated  October 
20,  1890,  executed  by  said  Moiitz  Bauer  in  his  own  behalf,  and 
also  executed  by  said  Bauer  in  the  name  of  his  wife,  Cecelia 
Bauer,  as  hor  attorney  in  fact,  such  equity  of  redemption  was 
conveyed  to  one  Randolph  Gugenheimer.  The  power  of  attor- 
ney, under  whi(  h  said  Bauer  acted  as  the  attorney  of  his  wife, 
was  executed  and  acknowledged  by  her,  and  recorded  in  the 
year  1881.  It  des'-ribes  both  the  paities  thereto  as  being  of 
the  city  of  New  York,  and  so  likewise  does  the  deed  to  Gug- 
genheimer.  Said  power  authorizes  said  attorney  *  to  contract 
for  the  sale  of,  and  to  grant,  bargain,  sell,  and  convey,  all 
or  any  lands,  tenements,  or  hereditaments  or  real  estate  to 
me  belonging,  situate,  lying,  and  being  within  the  United 
States  of  America,  whether  belonging  to  me  individually  or 
jointly  with  another  or  others,  at  public  or  private  sale,  for  cash 
or  upon  credit,  or  partly  for  cash  and  partly  upon  credit;  and 
for  such  price  or  prices,  and  upon  such  other  terms  and  con- 
ditions, as  to  my  said  attorney  may  seem  meet  and  proper  ;  and 
for  the  purpose  aforesaid,  and  in  my  name,  place,  and  stead,  as 
ray  act  and  deed,  to  sign,  seal,  execute,  and  acknowledge  and 
deliver  all  necessary  or  proper  contracts,  deeds,  conveyances, 
releases,  releases  of  dower  and  thirds,  and  right  of  dower  and 
thirds,  or  other  instruments  for  the  conveying,  surrendering,  and 
relinquishing  all  or  any  part  of  my  estate,  right,  title,  and  in- 
terest, whether  vested  or  contingent,  choate  or  inchoate,  there- 
in.' Mrs.  Bauer  was  not  made  a  party  to  this  action.  It  also 
appeared   that  certain  persons  had  obtained  judgments  against 

41 


042       THE    REQUISITES    AND    COMPONENT   PARTS    OF   A    DEED. 

Moritz  Rauor  piior  to  the  time  that  he  acquirod  title  to  the  prop- 
city  in  (jue.slion,  and  which,  by  orders  of  court,  made  also  pi'ior 
to  Bauer's  acquisition  of  title,  had  been  marked,  •  Lien  sus- 
pended,' or  ♦  Partially  susi)ended  upon  appeal,'  and  that  such 
persons  were  not  made  parties  to  this  action. 

**  The  oI)jection  to  the  title  based  upon  the  failure  to  make 
the  wife  of  Moritz  Bauer  a  party  to  the  action  presents  the 
questions  (a)  of  the  power  of  a  resident  married  woman  to  re- 
lease her  dower  by  attorney;  (b)  of  her  right,  if  she  has  such 
power,  to  make  hor  husband  her  attorney  for  such  purpose;  and 
(c)  whether  the  power  of  attorney,  if  otherwise  valid,  author- 
ized the  release  of  the  wife's  dower  in  after-acquired  property 
and  for  a  nominal  consideration.  These  questions  are  important, 
because  the  decision  of  them  not  only  affects  the  title  of  the 
property  in  question,  but  may  affect  many  other  titles.  The 
Revised  Statutes  of  this  State  contain  the  following  provision  : 
*  No  act,  deed,  or  conveyance,  executed  or  performed  by  the 
husband,  without  the  assent  of  his  wife,  evidenced  by  the  ac- 
knowledgment thereof,  in  the  manner  required  by  law  to  pass 
the  estfttes  of  married  women,  and  no  judgment  or  decree  con- 
fessed by  or  recovered  against  him,  and  no  laches,  default,  covin 
or  crime  of  the  husband,  shall  prejudice  the  rigiit  of  his  wife 
to  her  dower  or  jointure,  or  preclude  her  from  the  recovery 
thereof,  if  otherwise  entitled  thereto,'  4  Rev.  St.  (8th  Ed.),  p. 
2456.  It  has  been  decided  by  the  courts  of  this  State  that  the 
only  way  in  which  a  wife  can  release  her  dower  during  the  life 
of  her  husband  is  by  joining  with  him  in  a  conveyance  to  a  third 
person.  Carson  v.  Murray,  3  Paige,  483  ;  Elmdorf  v.  Lockwood, 
57  N.  322;  People  v.  Insurance  Co.,  6Q  How.  Pr.  115  ;  Ford  v. 
Knai^p,  31  Hun,  522.  It  has  also  been  held  by  the  courts  of 
other  States,  under  statutes  similar  to  our  own,  that  the  wife 
must  execute  the  release  herself,  and  that  she  cannot  release  by 
power  of  attorney.  See  5  Amer  &  Eng.  Enc.  Law,  p.  914,  and 
cases  there  cited. 

*'  In  1878,  however,  the  legislature  of  this  State  passed  the 
following  statute :  '  Any  married  woman,  being  a  resident  of  this 
State  and  of  the  age  of  twenty-one  years  or  more,  may  execute, 
acknowledge,  and  deliver  her  power  of  attorney,  with  like  force 
and  effect,  and  in  the  same  manner,  as  if  she  were  a  single 
woman.'  The  question  presented  for  decision  is  whether,  as- 
suming that  prior  to  the  passage  of  this  statute  a  married  woman 
could  not  release  her  dower  through  an  attorney  in  fact,  this 
statute  has  authorized  her  to  do  so.  It  is  suggested  that  the 
statute  does  not  authorize  a  married  woman  to  release  her  dower 
through  an  attorney,  because  the  act  provides  that  she  may  exe- 


RELEASE    OF    WIFE's     DOWER    BY    AGENT.  643 

cute,  acknowleflge,  aiul  deliver  her  power  of  attorney,  with  like 
force  and  effect,  and  in  the  same  manner,  as  if  she  were  a  sinirle 
woman;  and  that  the  k'gishitnre  in  assimilating  the  case  of  the 
wife  to  that  of  the  single  woman  could  not  have  intended  to 
authorize  the  former  to  act  through  an  attorney  in  any  manner 
iu  which  the  latter  could  not  do  so  ;  and  that  as  a  single  woman 
cannot,  of  course,  ever  be  vested  with  such  an  estate,  and  can- 
not, tiierefore,  appoint  an  attorney  for  the  purpose  of  releasing 
dower,  therefore  a  married  woman  cannot  do  so.  We  think  this 
is  too  narrow  an  interpretation  of  the  statute.  It  is  a  general 
maxim  of  the  law  that  whenever  a  man  siii  jurin  may  do  of  him- 
self he  may  do  hy  another,  and  the  same  maxim  applies,  of 
course,  to  a  single  woman.  We  think  that  the  true  interpreta- 
tion of  the  statute  is  that  just  as  a  single  woman  can  appoint  an 
attorney  to  perform  any  act  which  she  herself  can  do,  so  any 
act  which  can  be  done  by  a  mariied  woman  of  herself  can  be 
done  by  hei"  duly  api)ointed  attorney;  and,  as  a  married  woman 
can  release  her  dower  by  joining  with  her  husband  in  a  convey- 
ance of  the  property  to  a  third  party,  she  may  perforin  that  act 
through  an  attorney.  Tt  may  be  said  that,  as  the  legislature 
originally  [)res<'ribed  a  particular  way  in  which  a  married  woman 
could  release  her  dower,  such  special  provision  of  the  revised 
statutes  should  not  be  considered  as  modified  or  affected  by  the 
general  provisions  of  the  al)ove-quoted  act  of  1878,  which  does 
not  in  tei  nis  refer  to  the  release  of  dower,  and  which  authorizes 
a  powwr  of  attorney  to  be  acknowledged  in  the  same  manner  as 
if  the  woman  executing  the  power  were  single.  There  would  be 
force  in  this  objection  if  the  law  in  relation  to  acknowledgments 
of  deeds  and  other  instruments  by  married  women  had  remained 
as  it  was  when  the  revised  statutes  were  adopted.  It  was  pro- 
vided in  those  statutes  that  the  acknowledgment  of  a  married 
woman  residing  within  this  State  to  a  conveyance  purporting  to 
be  executed  by  her  should  not  be  taken  unless,  in  addition  to  the 
requisites  required  in  the  case  of  other  persons,  she  acknowl- 
edged, on  a  private  examination  apart  from  her  husband,  that 
she  executed  such  conveyance  freely,  and  without  any  fear  or 
compulsion  of  her  husband.  And  the  provision  of  the  revised 
statutes  al)ove  quoted,  in  regard  to  conveyances  releasing  the 
right  of  the  wife  to  her  dower,  provided  that  the  assent  of  the 
wife  must  be  evidenced  by  the  acknowledgment  thereof,  in  the 
manner  required  by  law  to  pass  the  estates  of  married  women. 
It  appears  to  have  been  considered  by  the  legislature  that  these 
l)rovisions,  in  reference  to  the  luanner  in  which  conveyances 
executed  by  married  women  should  be  acknowledged,  afforded 
great  protection  to  them ;   but,  whether  such  opinion  was  or  was 


(J44         THE    ItEQUlSITES    AND    COMPONENT    PARTS    OF    A    DEED. 

not  wt'll  founded,  siicli  provisions  luivo  I)(hmi  ontircl}'  swept  away 
by  later  leirislatioii  ;  for,  in  187J),  llio  legislature  passed  the  fol- 
lowing statute:  "The  acknowledgment  by  njarried  women,  or 
the  proof  of  the  execution  by  married  women,  of  deeds,  or 
other  written  instruments,  may  bo  made,  taken,  and  certified  in 
the  same  manner  as  if  they  were  sole;  and  all  acts  and  parts  of 
acts  whir'h  require  for  them  any  other  or  dillerent  acknowledg- 
ments, proofs,  or  certilicates  thereof  are  hereby  repealed.  4 
Rev.  St.  («th  Ed.),  p.  2489.  As  above  stated,  under  the  said 
act  of  1871),  acknowledgments  of  powers  of  attorney  could  be 
nmde  by  married  women  as  if  they  were  single  ;  but,  under  said 
act  of  1879,  all  acknowledgments  of  married  women  of  the 
execution  of  deeds  and  other  written  in:5truments  can  now  be 
made,  taken,  and  certified  in  the  same  manner  as  if  they  are 
single,  and  the  protection —  if  it  was  any  protection  — of  mar- 
ried women  in  regard  to  their  dower  rights,  and  other  rights  in 
real  property,  aflorded  by  the  provisions  as  to  private 
examination,  hits  been  entirely  taken  away  ;  and,  so  far 
as  the  protection  of  such  rights  is  concerned,  it  can 
make  no  possible  difference  whether  the  married  woman  releases 
her  dower  by  joining  with  her  husband  in  a  conveyance,  or 
whether  she  releases  the  same  through  an  attorney  a[)i)ointed  by 
her  for  that  pur|)ose.  Nor  do  we  perceive  any  good  reason 
whatever  why  a  married  woman  may  not  as  well  appoint  an 
attorney  to  execute  a  deed,  which  releases  her  dower  rights,  as 
to  execute  such  deed  herself.  The  reason  of  the  rule  ceasing, 
the  rule  itself  fails,  and  we  think  that  the  objection  is  not  well 
taken. 

'*  The  second  question  raised  is  whether,  if  a  married  woman 
has  the  power  to  api)oint  an  attorney  to  release  her  dower,  she 
can  make  her  husband  her  attorney  for  such  purpose.  We  do 
not  think  this  objection  is  well  founded.  It  has  been  held  that 
husbands  and  wives  may  legally  contract  with  each  other  in 
reference  to  their  separate  estates  (Owen  v.  Cawley,  36  N.  Y. 
600;  Bodine  v.  Killeen,  53  N.  Y.  90),  that  they  may  become 
agents  for  each  other  (Knapp  v.  Smith,  27  N.  Y.  277),  that  a 
husband  may  assign  to  his  wife  a  chose  in  action  (Seymore  v. 
Fellows,  77  N.  Y.  178),  and  it  has  very  recently  been  held  that 
the  common-law  disability  of  a  married  woman  to  engage  in 
a  business  as  a  copartner,  or  jointly  with  her  husband,  was 
removed  l)y  chapter  90  of  the  Laws  of  1860  (Suau  v.  Catfe, 
122  N.  Y.  308;  25  N.  E.  Rep.  488).  Under  these  decisions,  if 
a  married  woman  can  release  her  dower  rights  throuorh  an 
attorney,  as  we  think  she  can,  we  are  of  the  opinion  that  she  can 
appoint  her  husband  such  attorney. 


RELEASE    OF    WIFE'S    DOWER    BY    AGENT.  645 

The  third  question  raised  is  as  to  whether  the  power  of  attor- 
ney given  by  Mrs.  Bauer  to  her  husband  gave  him  the  right  to 
convey  property  acquired  after  the  execution  of  such  power. 
The  power  in  qtie.'-tion  authoiized  Mr.  Bauer  to  sell  and  convey 
all  or  any  lands  belonging  to  Mrs.  Bauer  situate  within  the 
United  States.  There  is  nothing  whatever  in  the  power  which 
restricted  it  to  lands  belonging  to  Mrs.  Bauer  at  the  time  the 
power  was  executed,  and  we  think  that  it  covers  lands  subse- 
quently acquired. 

*'  Another  ()l)jeetion  to  the  title  is  that  certain  judgment  cred- 
itors should  have  been  made  parties  to  the  action.  On  April 
10,  1889,  one  King  recovered  a  judgment  in  the  court  of  com- 
mon pleas  for  $2,299.54.  On  June  12,  1889,  an  appeal  was 
taken  from  said  judgment  to  the  general  term,  and,  upon  the 
consent  of  the  plaintiff  and  the  sureties  upon  the  appeal  bond, 
the  judgment  was  marked,  '  Lien  suspended  on  appeal ;  '  and 
upon  the  record  in  the  county  clerk's  office,  where  the  judgment 
had  been  docketed,  a  similar  entry  was  made.  On  February  5, 
1890,  the  judgment  of  the  general  term  was  entered,  affirming 
the  above-named  judgment,  and  for  $117.67  costs.  8  N.  Y. 
Supp.  466.  Subsequently  an  appeal  was  taken  from  said  last- 
mentioned  judgment  to  the  court  of  appeals.  On  July  2,  1890, 
an  order  was  entered,  suspending  the  lien  of  both  judgments 
as  to  property  on  which  said  judgments  were  or  might  become 
liens.  This  order  was  entered  by  consent  of  the  American 
Surety  Company.  On  December  3,  1891,  the  lien  was  re- 
stored by  proper  entries  in  the  judgment  book,  and  on  Decem- 
ber 4,  1891,  both  judgments  were  assigned  to  the  American 
Surety  Company.  Moritz  Bauer  took  title  to  the  property 
in  question  on  October  4,  1890,  and  conveyed  the  same  on 
October  20,  1890.  The  order  entered  on  July  12,  1889, 
directing  that  the  lien  be  suspended  on  appeal,  did  not,  in 
terms,  apply  to  after-acquired  property.  It  is  not  necessary 
for  the  purposes  of  this  appeal  to  decide,  and  we  do  not  now 
decide,  whether,  under  the  various  provisions,  of  the  Code  in 
reference  to  the  suspension  of  the  lien  of  judgments  on  appeal, 
this  order  suspended  the  lien  of  the  judgment  as  to  property  ac- 
quired by  Bauer  after  it  was  entered.  It  is  not  disputed  that 
the  order  entered  suspending  the  lien  upon  the  original  judg- 
ment, and  upon  the  judgment  for  costs,  at  the  general  term,  was 
entered  upon  the  consent  of  the  American  Surety  Company  that 
such  lien  should  be  suspended,  not  only  as  to  property  upon  which 
the  judgments  were  then  liens, but  as  to  the  after-acquired  prop- 
erty. It  is  also  undisputed  that  on  February  4,  1891,  both 
judgments  were  assigned  to  the  American  Surety  Company,  and 


640      THE    KEQUISITK8    AND    COMPONENT   PARTS    OF    A    DEED. 

that  that  company  only  can  raise  an  objection  as  to  the  regularity 
of  the  foreclosure,  so  far  as  relates  to  said  judgments  ;  and  that 
company  is  estopped  from  raising  such  question  by  reason  of 
consent  above  mentioned. 

"  Some  question  is  also  raised  in  regard  to  judgments  recov- 
ered by  one  Healy  ;  but,  by  an  order  of  this  court,  entered  on 
consent  of  the  plaintiff,  all  the  real  property  of  Moritz  Bauer 
(vvitb  an  exception  which  does  not  include  the  property  in  suit) 
U[)on  which  said  judgments  were  or  might  ther«3after  become  a 
lien  was  exem[)ted  from  the  liens  of  said  judgments  ;  and  such 
exception  remained  in  full  force  at  the  time  of  recording  of 
plaintiff's  mortgage,  and  at  the  time  of  tiling  the  notice  of  lis  pen- 
dens herein.  We  are  of  the  oi)inion  that  it  was  not  necessary 
that  either  of  the  judgment  creditors  above  should  have  been 
made  parties  to  the  actii)n,  and  that  the  order  appealed  from 
should  be  affirmed,  with  costs." 

Peckham,  J.  In  relation  to  the  question  arising  upon  this 
application  of  the  purchaser,  Wolff,  to  be  relieved  from  his  bid 
at  the  judicial  sale  on  the  ground  that  the  interest  of  the  wife  of 
Bauer  had  not  been  duly  conveyed  by  virtue  of  her  power  of  at- 
torney to  her  husband,  we  are  of  the  opinion  that  the  order  of  the 
general  term  is  erroneous,  and  for  the  reasons  stated  in  the  dis- 
senting opinion  of  Mr.  Justice  Andrews  at  the  general  term.  The 
limitation  sought  to  be  im[)osed  upon  such  power  of  attorney, 
that  it  only  authorized  Mrs.  Bauer's  husband  to  sign  his  name  to 
conveyances  of  lands  belonging  to  her,  is  not,  we  think, 
sustained  by  the  langunge  of  the  instrument.  Indeed,  the 
learned  judge  who  S')  held  in  his  opinion  at  the  general  term, 
in  order  to  arrive  at  this  conclusion  rejects  as  surplusage  the 
language  of  the  power  which  authorizes  the  husl)and  to  convey 
for  her,  and  in  her  name  and  as  her  act  and  deed  to  sign,  seal, 
execute,  acknowledge,  and  deliver  all  necessary  releases  of  dower 
and  thirds.  He  construes  the  language  used  in  the  first  part  of 
the  power  as  confining  its  application  to  the  execution  of  a  con- 
veyance of  any  and  all  lands  belonging  to  Mrs.  Bauer,  and  he 
says  the  words  "releases  of  dower "  subsequently  used,  have 
no  relation  to  the  power  actually  granted,  and  hence  are  sur- 
plusage. We  think,  however,  that  the  language  as  to  "  releases 
of  dower  "  was  used  for  the  very  purpose  of  authorizing  the  hus- 
band to  do  as  he  has  done,  and  that  the  language  of  the  first  i)art 
of  the  power,  when  speaking  of  lands,  etc.,  belonging  to  the 
wife,  does  not  limit,  and  was  not  intended  to  limit,  the  opera- 
tion of  the  words  "  releases  of  dower  and  thirds,"  so  as  to  make 
them  of  no  meaning  or  importance,  but,  on  the  contrary,  it  was 
intended  by  their  use  to  confer  authority  on  the  husband  to  re- 


RELEASE    OF    WIFE'S    DOWEK    BY    AGENT.  647 

lease  her  inchoate  right  of  dower  in  lands  belonging  to  him. 
Indeed  she  continues  the  statement  of  her  purpose  by  inserting 
in  the  instrument  a  power  to  execute  other  instruments  for 
the  conveyance,  surrendering  and  relinquishing  all  or  any 
part  of  her  estate,  right,  title,  and  interest,  whether  vested  or 
contingent,  choate  or  inchoate,  therein.  The  language  used 
in  the  first  part  of  the  power  should  not  be  held  to  operate 
all  through  it,  and  limit  the  otherwise  plain  meaning  of 
the  i)ai)er.  We  think  there  is  no  objection  to  the  title  arising 
out  of  the  power  of  attorney  given  by  the  wife  to  the  hus- 
band. She  had  the  right  to  execute  a  power  of  attorney  under 
the  act  of  chapter  300  of  the  Laws  of  1878,  and  in  executing 
such  power  she  could  appoint  her  husband  her  agent  or  attorney 
in  fact. 

As  to  the  objection  that  certain  creditors  by  judgment  against 
Bauer  were  not  made  parties,  nor  the  sureties  on  certain  appeal 
bonds,  we  think  a  sufficient  answer  is  made  by  the  fact  of  the 
entry  of  the  memorandum  by  virtue  of  section  1256  of  the  Code 
;)f  Civil  Procedure,  "  Lien  suspended  on  appeal."  We  think 
the  meaning  and  purpose  of  the  legislature  in  the  enactment  of 
that  and  the  succeedinor  sections  were  to  release  the  lieu  of  the 
judgment  so  sus})euded  on  ap[)eal  in  regard  to  all  property  upon 
which  it  otherwise  would  become  a  lien  until  the  court  orders  that 
it  be  restored  by  a  redocket.  The  sureties  upon  the  tirst  appeal 
to  the  general  term  consented  to  the  entry  of  the  order,  which 
did  not  in  terms  provide  as  to  subsequently  acquired  property, 
but,  if  we  are  right  in  our  construction  of  the  statute,  it  was 
not  necessary  to  so  state  it  in  the  order.  The  law  itself  provided 
for  the  fact.  The  sureties  upon  a  further  appeal  taken  to  the 
court  of  appeals,  consented  in  terms,  to  the  order  suspending 
the  lien,  including  after-acquired  propert3^  Upon  the  affirm- 
ance of  the  judgment  by  the  latter  court,  the  sureties  on  the  last 
appeal  bond  took  an  assignment  of  the  judgments,  and  in  their 
hands  there  was  no  longer  any  liability  on  the  sureties  on 
the  first  appeal.  Such  sureties  became,  on  the  giving  of  the 
second  undertaking  to  pay  the  judgment,  sureties  for  the  second 
sureties;  and  when  the  second  sureties  payed  or  discharged 
their  ol)ligation  to  the  owner  of  such  judgments,  and  took  an 
assignment  of  them  they  could  not  enforce  them  against 
the  Urst  sureties.  Under  these  circumstances  there  is  no  reason 
on  this  ground  for  releasing  the  purchaser  from  his  bid.  The 
respondent  here  does  not  insist  upon  an  objection  that  these 
questions  were  doubtful,  and  a  purchaser  ought  not  to  be  re- 
quired to  take  such  a  title;  but  as  we  understand,  if  the  ques- 
tions above  discussed  should  be  decided  in  favor  of  the  title,  he 


648      THE    REQUISITES    AND    COMPONENT    PARTS    OF   A    DEED. 

is  willing  io  take  it,  although  those  who  are  not  parties  here 
would  not  1)0  legally  barred  by  our  decision  from  hereafter 
raising  the  question.  As  our  decision  doj)ends  upon  the 
construction  of  statutes,  the  rule  of  s/are  decisis  would  be 
effectual  as  an  answer  to  any  further  claim,  and  we  think  the 
purchaser  entirely  justified  in  his  waiver.  Our  conchisioo  is 
that  the  order  of  the  general  term  should  be  reversed,  and  that 
of  the  special  term  affirmed,  with  costs  in  all  courts.  All 
concur. 


Certificate  of  Acknowledgment  not  Conclusive. 

O'Neil  ■;;.  Webster,  150  Mass.  572;  23  N.  E.  235. 

Appeal  from  superior  court,  Suffolk  County;  Theodore  M. 
Osborne,  Judge. 

Bill  in  equity  by  Honora  O'Neil  against  Mary  A.  Webster, 
setting  up  that  plaintiff,  after  an  examination  of  the  records,  and 
finding  the  title  all  clear,  purchased  certain  land  of  one  Charles 
C.  Kendall,  and  that  defendant  demands  payment  of  $500,  with 
interest,  alleged  to  be  secured  by  mortgage  on  said  land,  and 
that  such  mortgage  had  by  a  discharge,  duly  acknowledged  and 
recorded,  been  released  by  defendant,  and  asking  for  an  injunc- 
tion against  the  enforcins;  of  the  mortijage.  On  hearing  below, 
decree  was  entered  for  defendant,  and  plaintiff  appealed. 

W.  Allen,  J.  The  evidence  shows  that  the  defendant  never 
executed  the  release  of  the  mortgage  and  that  her  signature  to 
it  was  forged.  The  plaintiff  contends  that  the  certificate  of  the 
justice  of  the  peace,  that  the  defendant  acknowledged  the  deed, 
is  conclusive  that  she  executed  it.  The  only  use  of  the  certificate 
of  acknowledgment  of  a  deed  by  a  grantor  is  to  entitle  it  to  be 
recorded.  It  is  familiar  that  the  registry  of  a  deed  is  not  con- 
clusive proof  of  its  execution.  When  the  original  deed  is  the 
proper  evidence,  its  execution  must  be  proved  as  if  it  were  not 
recorded.  When  a  copy  of  a  deed  from  the  registry  is  compe- 
tent, the  registry  is  j^^'i^f^  /'^(^'i^  proof  of  its  execution,  but  not 
conclusive.  Samuels  v.  Borrovvscale,  104  Mass.  207  ;  Easton  v. 
Campbell,  7  Pick.  10;  Com.  v.  Emery,  2  Gray,  80;  Pidge  v. 
Tyler,  4  Mass.  541.  It  is  then  contended  by  the  plaintiff  that 
the  defendant  adopted  the  signature,  and  acknowledged  the  deed 
to  be  hers.  But  the  evidence  shows  that  the  defendant  had  no 
knowledge  of  the  discharge,  and  did  not  acknowledge  any  paper 
to  be  her  deed  ;  but  that  Kendall,  the  mortgagor,  and  the  forger 
of  the  discharge,  deceived  the  justice  of  the  peace  into  believing 
that  an  acknowledgment  to  Kendall  bvthe  defendant  that  she  h:id 


DELIVERY   PRESUMED   FROM   THE    GRANTEE's    POSSESSION.       649 

verbally  extended  another  mortirage  was  an  acknowledgment  that 
this  discharge  was  her  deed,  and  fraudulently  induced  the  justice 
to  attest  her  signature  and  to  certily  to  her  acknowledgment  of 
the  instrument  before  him.  We  cannot  see  that  the  mistake  of 
the  justice  was  caused  by  any  negligence  or  fault  on  the  part  of 
the  defendant,  or  that  she  is  in  any  way  estopped  to  show  the 
truth.     Decree  affirmed. 


Delivery  Presumed  from    the    Grantee's    Possession    of    the 

Deed. 

Magee  v.  Allison,  —Iowa,  — ;  63  N.  W.  322. 
(Official  report  not  yet  published.) 

Deemer,  J.  Plaintiff  is  the  daughter  and  sole  heir  at  law  of 
W.  W.  McHenry,  who  departed  this  life  in  November,  1889. 
McHenry  was  twice  married,  and  plaintiff  is  the  sole  issue  of 
his  fir.-t  marriage.  He  left  surviving  him,  Charlotte  L.  Mc- 
Henry, his  widow,  who  was  a  sister  of  the  defendants  Allison. 
After  the  husband's  death,  the  widow  continued  to  possess  and 
occupy  the  property  in  controversy,  which  was  their  homestead, 
until  her  death,  which  occurred  May  4,  1892.  On  the  7th  day  of 
May,  1892,  the  defendant  Lawrence  Allison  caused  to  be  filed 
for  record  with  the  recorder  of  Winnesheik  County  a  deed 
from  W.  W.  McHenry  and  Charlotte  L.  McHenry,  his  wife, 
purporting  to  be  executed  and  acknowledged  on  the  12th 
of  December,  1887,  conveying  the  property  in  contro- 
versy, with  other  lots  and  land,  to  lAiwrence  Allison. 
Afterwards,  and  on  May  9,  1892,  Lawrence  Allison  conveyed  the 
property  in  controversy,  by  quitclaim  deed,  to  his  codefendant, 
Richard  Allison.  This  deed  was  filed  for  record  on  May  14, 
1892.  Shortly  after  the  death  of  W.  \V.  McHenry,  and  in  Feb- 
ruary of  the  year  1890,  plaintiff  filed  a  petition  in  probate,  in 
which  she  recited  that  she  was  the  sole  and  only  heir  of  W.  W. 
McHenry,  and  that  Charlotte  L.  McHenry  was  bis  widow  ;  that 
W.  W.  died  seised  of  the  property  in  controversy,  and  asked 
that  C.  L.  McHenry  be  required  to  make  an  election  as  to  which 
she  would  take,  —  homestead  or  dower  in  the  premises.  C.  L. 
McHenry  answered  this  petition  by  an  election  to  take  the  prop- 
erty for  life  as  a  homestead,  in  lieu  of  her  distributive  share, 
and  a  decree  was  entered  in  accord  with  election.  Administra- 
tion was  not  had,  however,  upon  the  estate  of  W.  W.  McHenry, 
deceased.  Immediately  upon  the  death  of  the  widow,  the  de- 
fendants took  possession  of  the  homestead  under  the  deeds  above 
set  forth,  and  plaintiff  thereupon  commenced  this  action  to  quiet 
her  title  and  set  aside  the  deeds  held  by  the  defendants. 


650       THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DKED. 

It  is  first  insisted  that  the  deed  from  Mcllcnry  and  wife  to 
Lawrence  Allison,  in  so  fur  as  it  covers  the  homestead  in  ques- 
tion, is  a  forgery.  The  deed  covers  various  lots  and  parcels  of 
land  other  than  that  in  dispute,  which  were  in  the  name  of 
Charlotte  L.  Mcllcnry  ;  and  it  is  claimed  that  the  description 
covering  the  land  in  cpiestion  was  added  to  the  deed  after  its 
execution  and  deliveiy  by  the  McIIenrys,  and  that  it  does  not 
convey  the  homestead.  That  part  of  the  description  said  to  be 
a  forgery  is  written  in  a  dili'erent  colored  ink  from  that  in  the 
main  body  of  the  deed,  and  an  alteration  is  apparent  in  this 
description.  The  alteration  appearing  upon  the  deed  is  fully 
explained  by  the  scrivener  who  drew  it,  and  he  also  explains 
how  the  writing  appears  in  different  colors  in  a  fairly  satis- 
factory manner.  The  only  testimony  relied  upon  to  show  the 
alleged  alteration  is  from  experts,  some  of  whom  were  of  the 
opinion  that  the  de8crii)tion  covering  the  premises  in  dispute 
was  written  after  the  main  body  of  the  deed,  and  certain  other 
circumstances  which  it  is  claimed  have  a  tendency  to  show  that 
the  deed  is  a  foigery.  The  question  as  to  what  effect  an  appar- 
ent alteration  of  a  written  instrument  has  with  reference  to  the 
burden  of  proof  has  recently  undergone  extended  examination  at 
the  hands  of  this  court  in  the  case  of  Hagan  v.  Insurance  Co., 
81  Iowa,  321  ;  46  N.  W.  1114.  It  is  there  held  that  an  altera- 
tion apparent  upon  the  face  of  a  writing  raises  no  presumption 
that  it  was  made  after  delivery  and  without  authority,  and  that 
the  burden  is  not  upon  him  who  relies  upon  the  instrument  to 
explain  the  alteration,  but  upon  him  who  attacks  it  to  prove 
that  the  alterations  were  made  after  delivery  and  without  author- 
ity. We  need  not  do  more  than  apply  this  rule  to  the  facts  of 
this  case.  When  this  is  done  it  is  manifest  that  plaintiff  has 
failed  to  establish  the  alleged  forgery. 

2.  It  is  next  insisted  that  the  deed  to  Lawrence  Allison  was 
never  delivered  to  or  accepted  by  him  with  intent  to  make  it 
effectual,  and  that  he  never  paid  any  consideration  therefor. 
Delivery  of  a  deed  is,  of  course,  essential  to  its  validity ;  and, 
to  constitute  such  delivery,  there  must  ordinarily  be,  not  only  a 
manual  change  of  possession,  but  an  intention  on  the  part  of  the 
grantor  to  make  it  operate  as  such,  and  an  acceptance  on  the 
part  of  the  grantee  as  well.  It  is  well  settled,  however,  that,  if 
a  deed  fully  executed  is  found  in  the  possession  of  the  grantee, 
it  is  presumed  to  have  been  delivered  by  the  grantor  and  accepted 
by  the  grantee  at  the  date  of  its  execution.  Wolvertou  v.  Col- 
lins, 34  Iowa,  239;  Craven  v.  Winter,  38  Iowa,  480.  This  pre- 
sumption is  not  conclusive,  but  it  raises  a  strong  implication,^ 
which   can  only  be  overcome  by  clear  and  satisfactory  proof. 


DELIVEHY    PRESUMED    FROM   THK    GRANTEe's    POSSESSION.       651 

Tunison  v.  Chamblin,  88  111.  379.  Such  i\  rule  is  necessary  to 
the  security  of  titles.  Any  other  would  render  all  holdings 
uncertain,  and  would  be  disastrous  in  the  extreme. 

In  this  case  wo  not  oidy  find  the  deed  to  the  lot  in  <|ue>tion  in 
the  possession  of  the  iriantee,  but  we  have  affirmative  testimony 
from  thiee  witnesses  that  it  was  delivered  to  him  by  the 
grantor,  thiough  his  agent,  the  scrivener  who  wrote  it.  As 
against  this,  the  appellee  relies  upon  circumstantial  evidence 
which  she  claims  jioints  to  the  conclusion  that  the  deed  was  sur- 
reptitiously ol)taiued  liy  the  grantee  and  his  brother,  C.  W.  Alli- 
son, after  the  death  of  Mrs.  McHenry.  It  is  unnecessary  that 
we  set  out  the  testimony  relied  upon.  It  is  sufficient  to  say  that 
nearly  all  these  collateral  facts  with  reference  to  the  delivery 
of  the  deed  can  be  explained  upon  a  theory  perfectly  consistent 
with  a  delivery  of  the  deed.  Such  being  the  case,  the  presump- 
tion arising  from  the  possession  of  the  deed  in  the  grantee  is 
not  overcome.  The  testimony  most  relied  upon  to  show  there 
was  no  delivery  is — First,  the  admission  of  Lawrence  Allison 
that  he  did  not  take  possession  of  the  property,  record  his  deed, 
or  exercise  any  acts  of  ownership  over  the  lot  except  to  hold  the 
deed  until  after  the  death  of  Mr.  and  Mrs.  McHenry;  and  sec- 
ond, declaiations  made  by  Mrs.  McHenry,  after  the  conveyance, 
indicating  that  she  understood  and  believed  she  owned  the  prop- 
erty or  a  homestead  right  in  it  after  the  death  of  her  husband. 
With  reference  to  this  first-mentioned  testimonv,  the  de- 
fendant has  offered  an  explanation  which  is  entirely  consistent 
with  his  claim  that  he  owned  tlie  property  at  all  times  after 
the  deed  was  executed.  Mrs.  McHenry  was  his  sister  and 
it  is  not  unreasonable  to  sup{)ose  that  because  of  this 
relationship  he  allowed  her  and  her  husband  to  remain  in 
the  possession  of  the  property  after  he  became  the  owner  of 
it ;  and  the  fact  that  she  remained  in  possession,  paid  taxes,  and 
made  repairs  thereon  is  not  of  itself,  under  the  circumstances 
disclosed,  inconsistent  with  the  claim  that  she  parted  with  her 
interest  in  it  by  a  deed  to  her  brother.  It  is  doubtful  whether 
her  declarations,  made  after  she  had  relinquished  her  inteicst  in 
the  property  by  the  deed  to  Lawrence  Allison,  to  the  effect  thai, 
after  the  death  other  husband,  she  had  some  interest  in  it,  are 
admissible.  Concede  that  they  are,  they  constitute  no  pait  f)f 
the  res  c/es(ae.  They  were -not  so  connected  with  the  imdviuL' 
and  delivery  of  the  deed  as  to  indicate  the  character  of  the 
transaction.  At  most,  such  declarations,  if  admissible  at  all, 
are  explanatory  only  of  the  possession  of  Mrs.  McHenry,  and 
are  not  sufficient  to  render  ineffectual  a  solemn  deed  found  after 
her  death  in  the  possession   of  the   grantee.     Williams  v.  Will- 


652      THE   REQUISITES    AND    COMPONENT   PARTS    OF    A    DEED. 

iams  (N.  Y.  A])i).),  3G  N.  K.  1053;  Vrooman  v.  King,  36  N.  Y. 
482  ;  Jackson  v.  Aldricli,  13  Johns.  106  ;  Padgett  v.  Lawrence, 
10  Paige,  170;  Allen  v.  Kirk,  81  Iowa,  658;  47  N.  \V.  906; 
Bartlet  v.  Delprat,  4  Mass.  702.  It  is  important  to  note  that  at 
no  time  did  Mrs.  Mclleiuy  liold  the  legal  title  to  the  premises. 
Before  the  deatli  of  her  husband  she  had  no  interest  except  her 
inchoate  right  of  dower,  and  the  right  to  use  and  occupy  the 
property  as  a  homestead.  After  his  death,  she  might  have  taken 
cue-third  of  the  premises  in  fee  as  her  distributive  share, 
provided  no  conveyance  of  it  had  been  made.  But  this  she 
did  not  avail  herself  of.  She  elected  to  take  the  whole  for 
life  as  a  homestead.  These  facts  make  the  admission  of  her 
declarations  even  more  doubtful  than  if  she  had  at  one  time 
owned  the  fee. 

3.  It  is  further  contended  that  the  delivery  of  the  deed  to 
Lawrence  Allison  was  conditional  upon  his  surrendering  to  Mrs. 
McHenry  a  note  for  $9,443.00  executetl  by  a  partnership,  com- 
posed of  her  husband  and  one  C  W.  Allison,  during  the  life- 
time of  Mrs.  McHenry.  The  deed  is  an  absolute  one,  and  bears 
no  condition  upon  its  face.  It  was  sent  by  mail  to  Lawrence 
Allison  by  his  brother  C.  W.  Allison,  who  drew  it  at  the  request 
of  Mr.  and  Mrs.  McHenry.  It  was  never  deposited  or  intended 
to  be  left  with  any  one  in  escrow.  The  rule,  as  we  understand 
it,  is  that,  if  delivery  of  a  deed  is  made  to  the  grantee,  it  will 
be  an  absolute  delivery,  whatever  conditions  may  be  annexed 
thereto  not  incorporated  in  the  deed  itself;  and  title  will  im- 
mediately pass  to  the  grantee.  In  other  words,  a  deed  cannot 
be  delivered  to  the  grantee  in  escrow.  Tied.  Real  Prop.,  §  815; 
Fairbanks  v.  Metcalf,  8  Mass.  230;  Worrall  v.  Munn,  5  N.  Y. 
229. 

It  is  also  said  that  there  was  no  consideration  for  the  deed  ; 
that  the  $9,443  was  not  delivered  as  agreed  ;  and  that  the  con- 
veyance should  be  set  aside.  It  seems  to  be  well  settled  that,  in 
the  absence  of  fraud,  parol  evidence  is  admissible  to  show  that 
there  was  no  consideration  for  a  deed  for  the  purpose  of  invali- 
dating it,  when  the  deed  recites  a  consideration  on  its  face.  See 
Gardner  v.  Lightfoot,  71  Iowa,  580;   32  N.  W.  510. 

4.  It  is  also  contended  that  the  proceedings  in  j>robate  in  which 
Mrs.  McHenry  elected  to  take  the  premises  as  a  homestead  are  a 
bar  to  defendant's  claim ;  that  the  order  therein  made  is  conclu- 
sive upon  defendants.  It  is  difficult  to  see  on  what  theory  such 
contention  can  be  sustained.  Lawrence  Allison  was  not  a  party 
to  these  proceedings,  and  had  no  knowledge  of  them.  He  was 
then  holding  a  deed  to  the  land  from  plaintiff's  ancestor,  which 
it  is  true  was  not  recorded:  but  plaintiff,  as  an  heir,  is  not  a  sub- 


DELIVERY   TO   A    STRANGER.  653 

sequent  purchaser  under  our  recording  statutes,  and  is  not  pro- 
tected against  unrecorded  deeds  made  by  her  ancestor.  Morgan 
V.  Corbiu,  21  Iowa,  117.  As  defendant  Allison  was  not  a  party 
to  these  probate  proceedings,  lio  was  not  bound  by  the  order 
made  therein,  even  if  it  be  conceded  that  the  probate  court  had 
jurisdiction  to  determine  the  status  of  the  legal  title  to  the  lot 
after  the  death  of  W.  VV.  McLlenry.  This  proposition  is  so 
plain  Ihat  a  citation  of  authorities  seems  unnecessary. 

5.  It  is  charged  in  the  petition  that  W.  W.  McHenry,  at  the 
time  lie  executed  the  deed,  had  not  sufficient  mental  ca{)acity  to 
understand  the  nature  and  character  of  the  transaction.  This 
contention  seems  to  be  abandoned  in  aigument.  But  we  have 
examined  the  testimony  bearing  upon  this  issue  quite  fully,  and 
do  not  think  it  establishes  the  allegations  made  in  the  petition. 

6.  Plaintif}''s  counsel  vigorously  contend  that  defendant  Law- 
rence Allison  fraudulently  abstracted  the  deed  to  him  from  the 
papers  of  Mrs.  McHenry  after  her  death,  and  had  the  same  re- 
corded. While  there  are  some  suspicious  circumstances  connected 
with  the  case,  we  do  not  think  the  claim  has  been  established. 
The  evidence  convinces  us  that  the  deed  was  duly  delivered  by 
the  McHenrys  during  their  lifetime;  that  it  was  their  free  and 
voluntary  act,  and  that  it  was  not  forged  and  altered.  The 
legal  presumptions  are  all  with  defendants,  and,  as  against  these, 
we  have  nothing  but  suspicious  circumstances  which  can  all, 
or  nearly  all,  be  accounted  for  on  a  theory  entirely  consistent 
with  the  due  delivery  of  the  deed. 

There  are  many  collateral  facts  and  circumstances  in  the  case 
of  more  (^r  less  importance  relating  to  the  original  acquisition  of 
the  lot,  the  relations  of  the  parties,  the  consideration  for  various 
deeds  covering  the  premises  in  controversy,  as  well  as  other  lots 
and  lands  which  we  do  not  refer  to.  Our  attempt  has  been  to 
treat  of  the  controlling  questions  in  the  light  of  all  these  collat- 
eral facts,  and  our  conclusion  is  that  the  decree  cannot  be  sus- 
tained. A  decree  will  be  entered  in  this  court  dismissing 
plaintiff's  petition  at  her  costs.     Reversed. 


Delivery  to  a  Stranger. 

Miller  v.  Meers,  155  III.  284;  40  N.  E.  677. 

Opinion  by  Carter,  J. 

Plaintiffs  in  error,  the  seven  children  of  William  P.  Bissell, 
filed  their  bill  in  equity  in  the  circuit  court  of  Will  County 
against  defendants  in  error,  as  executors  and  trustees  under  the 
last  will  of  Martin  C,   Bissell,  deceased,  and    against   William 


654        THE    REQUISITES    AND    COMPONENT   PARTS    OF    A    DEED. 

Griiiloii  and  olhois,  to  compel  the  delivery  to  coiiiplaiiiiints  of  a 
deed  executed  to  them  by  s:iid  M.irtiii,  in  his  lifetime,  for  certain 
real  o>t;ito  situated  in  Joliet,  called  the  "  Bis8cll  Hotel  Properly," 
and  to  confirm  and  establish  the  title  to  Sitid  property  in  said 
[)laintiffs.  William  P.  Bissell,  also,  was  made  defendant  to  the 
bill.  The  executors  filed  a  cross  bill  to  compel  the  cancellation 
and  delivery  to  them  of  said  deed,  and  also  of  a  life  lease  exe- 
cuied  at  the  same  time  by  said  Martin  to  said  Willi;im  P.  Bissell 
and  wife.  Issues  were  made  on  the  bill  and  cross  bill,  and  on  a 
hesiring  the  circuit  court  decreed  that  the  bill  be  dismissed,  and 
that  tlie  relief  piayed  by  the  cross  bill  be  granted,  and  that  the 
complainants  pay  the  costs.  This  writ  of  error  is  brought  by 
the  complainants  to  reverse  that  decree. 

The  principal  facts  set  up  in  the  pleadings  and  established  by 
the  proofs  are,  in  substance,  as  follows:  Martin  C.  Bissell,  the 
owner  of  the  property  in  question,  resided  in  Joliet,  and  was  a 
man  of  considerable  wealth.  His  wife  was  living,  but  they  had 
no  children.  He  had  permitted  his  brother  William  P.  Bissell, 
the  father  of  plaintiffs  in  error,  who  was  possessed  of  small 
means,  to  occupy  and  run  the  hotel  property  for  a  number  of 
years  upon  terms  disclosed  oidy  by  the  testimony  of  said  Will- 
iam, held  by  the  court  to  be  incompetent.  The  evidence  does 
not,  however,  disclose  that  William  had  ever  paid,  or  agreed  to 
pay,  any  rent.  In  1875,  while  William,  with  his  wife  and  three 
minor  children,  were  thus  occupying  the  property,  his  adult 
children  having  established  themselves  in  other  parts  of  the 
country,  Martin  and  his  wife  executed  and  acknowledged  a  war- 
ranty deed  of  the  hotel  property  to  plaintiffs  in  error,  naming 
them,  and  as  the  children  of  said  William,  for  the  expressed 
consideration  of  one  dollar  and  natural  love  and  affection,  and 
at  the  same  time  Martin  executed  and  delivered  to  William  and 
his  wife  a  life  lease  to  the  same  property.  The  deed  recited 
that  it  was  subject  to  the  lease.  The  deed  was  drawn  by  the 
defendant,  William  Grinton,  at  Martin's  request.  Grinton  also 
attested  its  execution,  as  a  witness,  and,  as  a  notary  public, 
took  the  grantor's  acknowledgment.  The  certificate  was  in  the 
usual  form,  certifying  that  the  grantors  acknowledged  that  they 
signed,  sealed,  and  delivered  the  said  instrument  as  their 
free  and  voluntary  act,  for  the  uses  and  purposes  therein 
expressed.  The  lease  was  executed  by  Martin,  as  lessor,  and 
William  and  his  wife,  as  lessees ;  was  delivered  to  William 
and  his  wife;  purported  to  be  for  the  term  of  their  *'  natural 
lives,"  and  upon  the  consideration  that  the  lessees  should 
pay  all  taxes,  keep  the  premises  in  as  good  condition  as 
when  received,  and  keep  the   buildings  insured,  —  three-fourths 


DELIVERY  TO  A  STRANGER.  655 

of  the  insurance  for  the  benefit  of  the  lessees,  and  one-fourth  for 
their  children,  the  plaintiffs  in  error.  The  lease  also  contained 
the  following:  "And  it  is  further  expressly  agreed  by  and 
between  the  parties  hereto  that  in  case  said  premises  should  at 
any  time  be  sold  for  taxes  or  assessments,  and  said  party  of  the 
second  part  should  fail  to  redeem  said  premises  from  such  sale 
at  least  three  months  before  the  time  of  redemption  from  said 
sale  expires,  or  if  said  parties  of  the  second  part  shall  both  at 
any  time  cense  to  j^ersonally  occupy  said  premises  ( loss  or  damage 
by  fire  or  inevitable  accident  excepted),  then  and  in  either  of  said 
last  named  events  the  said  children  of  said  William  P.  Bissell 
above  named  shall  have  the  right,  at  their  election,  to  declare 
said  term  ended,  anything  herein  to  the  contrary  notwithstand- 
ing, and  the  said  demised  premises,  or  any  part  thereof,  to  enter, 
and  the  said  party  of  the  second  part,  or  any  other  person  or 
persons  occupying  in  or  upon  the  same,  to  expel,  remove,  or  put 
out,  using  such  force  as  may  be  necessary  in  so  doing.  The  deed 
and  lease  were  dated  January  11,  1875,  but  the  acknowledgment 
was  taken  March  31,  1875.  Some  time  in  1877,  because  of  some 
domestic  trouble,  William's  wife  left  him,  and  went  to  a  distant 
city  to  live  with  her  sister,  taking  some  of  their  younger  children 
with  her,  and  about  six  months  thereafter  William  left  the  prem- 
ises, also,  and  removed  to  Chicago;  he  and  his  wife  having  per- 
manently separated,  and  neither  of  them,  nor  their  children, 
having  since  then  occupied  the  property.  When  Martin  C.  Bis- 
sell and  wife  executed  the  deed  to  plaintiffs  in  error,  he  left  it 
with  Grinton,  the  notary,  and  told  him  to  take  it  and  take  care 
of  it,  giving  no  other  directions  respecting  it.  Grinton  put  it 
in  an  euvelo[)e,  and  placed  it  in  the  safe  in  the  office  where 
he  and  Martin  were  engaged  in  business.  He  was  then 
transacting  business  for  Martin  C.  Bissell  and  himself  under 
a  contract  by  which  he  received  a  certain  share  of  the 
profits.  The  private  papers  of  each,  as  well  as  their  partner- 
ship papers,  were  kept  in  the  safe.  Grinton  retained  possession 
of  the  deed  until  he  produced  it  in  court  alter  the  death  of  Martin 
C.  Bissell,  —  a  period  of  about  15  years.  He  testified  that  it  had 
never  been  out  of  his  hands  since  it  was  placed  there  by  Bissell, 
the  grantor  ;  and  it  does  not  appear  that  any  one  ever  asked  him 
for  the  deed  until  it  was  demanded  by  plaintiffs  in  error,  shortly 
before  the  filing  of  this  bill.  After  William  P.  Bissell  left  the 
property,  in  1877,  Martin  C  Bissell  took  charge  of  it,  collected 
the  rents,  paid  the  taxes  on  it,  and  kept  it  in  repair,  the  collections 
exceeding  the  disbursements  by  only  a  small  amount.  Plaintiffs 
in  error  claim  this  was  done  by  agreement  between  him  and  bis 
brother  William,  while  defendants  insist  it  was  done  as  the  owner, 


G5G        THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

ill  the  exeicisoof  his  o\vncrslii|)  of  the  i)i()i)crty.  Two  "witnesses 
(  Stcvensaiid  Dirkinan  )testiHe(l  that  chirinji;  tliis  period  Martin  told 
them  at  different  tinios  that  the  proi)erly  l)eh)nged  to  his  brother's 
chiUlreii.  One  of  these  witnesses,  —  an  old  neighbor  of  Martin's 
and  who  had  formerly  owned  the  property, —  seeing  that  it  "  was 
running  down,"  incjuiredof  hnn  about  the  properly,  and  proposed 
to  purchase  it,  but  Martin  told  hini  he  could  not  sell  it;  that  it  was 
not  his  ;  that  he  had  deeded  it  to  his  brother's  children,  and  had 
given  his  brother  a  life  lease  on  it ;  that  his  brother  had  full  control 
of  it  before  he  went  to  Chicago,  but  had  allowed  it  to  run  to  waste ; 
and  that  he  had  paid  the  taxes  for  the  benefit  of  his  brother. 
One  of  these  conversations,  the  witness  testified,  occurred  seven 
or  eight  years  before  the  trial,  which  took  place  in  1890,  and  the 
other  live  or  six  months  before  Martin's  death.  In  the  last  con- 
versation this  witness,  Stevens,  asked  Martin  why  William  did 
not  take  care  of  the  property;  and  the  reply  was  that  Willliam 
and  his  wife  had  parted,  and  he  did  not  seem  to  take  much 
charge  of  it.  The  other  witness  testified  that  some  four  years 
before  the  trial  he  was  employed  by  Martin  in  whitewashing  in 
the  hotel.  He  was  an  elder  or  Stewart  in  the  African  Methodist 
Episcopal  Church,  and  was  interested  in  procuring  a  site  for  a 
church,  and  suggested  to  Mr.  Bissell  the  idea  of  letting  him  have 
the  property  so  that  he  "  could  turn  it  over  for  a  church,"  but 
that  Mr.  Bissell  replied  that  he  could  not  let  him  have  it;  that 
it  was  his  brother's  children's  property,  and  he  would  attend  to 
it.  Two  witnesses  (Grinton  and  Vose)  testified  for  defendants 
that,  after  William  P.  Bissell  left  the  property,  Martin  C. 
Bissell  turned  it  over,  first  to  Grinton,  and  then  to  Vose,  who 
took  charge  of  it,  kept  the  account  of  collections  and  disburse- 
ments, and  carried  it  on  the  books  in  Martin's  name,  and  in  the 
same  manner  as  other  pro[)erty  of  Martin's.  Vose  testified  that 
Martin  tried  to  sell  it,  and  in  1885,  talked  of  trading  it  for  land  in 
Virginia.  Vose  claims  to  have  acquired  an  interest  in  the  prop- 
erty, and  had  a  suit  pending  against  the  executors  to  enforce  it. 
Martin  C.  Bissell,  by  his  will,  after  making  various  small  be- 
quests to  plaintiffs  in  error  and  others,  gave  the  bulk  of  his  estate 
to  defendants  in  error,  in  trust  for  certain  religious  purposes. 
The  testator's  property  was  not  specifically  described  in  the  will. 

The  controverted  question  in  this  case  is,  did  the  title  to  the 
hotel  property,  sul)ject  to  the  lease  to  William  P.  Bissell,  vest  in 
plaintiffs  in  error  by  virtue  of  the  deed  of  Martin  C.  Bissell  and 
wife,  or  did  the  deed  fail  to  take  effect,  because  of  non-delivery? 

The  first  question  to  be  determined  is  whether  or  not  the  trial 
court  erred  in  admission  of  the  testimony  of  the  witnesses  Olin 
and  William  P.  Bissell.     Judge    Olin,  who    drew   the    will    of 


DELIVERY    TO    A    STRANGER.  ()57 

Martin  C.  Blssell,  was  permitted,  against  the  objection  of  plain- 
tiffs, to  testify  that  the  testator,  in  making  up  the  list  of  his 
property  to  be  included  in  his  will,  included  in  the  list  the  hotel 
property  and  told  him  (the  witness)  that  the  provisions  made 
in  the  will  for  plaintiffs  were  all  he  had  given  or  intended  to 
give  him.  The  court  had  also,  against  the  objections  of  the 
(lefendants,  permitted  the  plaintiffs  to  prove  by  Wm.  P. 
Bissell  that  he  went  into  the  possession  of  the  hotel  more 
than  10  years  before  the  deed  and  lease  were  made,  under 
the  promise  of  his  brother  to  give  it  to  him  for  life,  with 
remainder  to  his  children,  and  that  he  retained  possession  under 
such  promise,  without  paying  any  rent,  until  the  lease  was 
made,  and  that  when  he  left  it,  in  1877,  he  arranged  with  his 
brother  to  lease  and  take  cure  of  the  property.  In  both  of  these 
rulingfs  the  trial  court  erred.  The  defendants  were  defending  as 
the  executors  and  trustees  under  the  will  of  the  deceased,  and 
William  P.  Bissell  was  a  party,  and  interested  in  the  event  of  the 
suit,  adversely  to  the  estate.  While  it  is  true  that  the  bill  did 
not,  in  terms,  seek  to  establish  the  lease,  yet  it  set  up  the  lease, 
as  well  as  the  deed,  and  the  deed,  on  its  face,  purported  to  be 
subject  to  the  lease.  As  between  the  giantees  in  the  deed  and 
the  lessees,  no  forfeiture  had  ever  taken  place  under  the  lease. 
If  William's  testimony  was  true,  instead  of  abandoning  the  lease, 
and  surrendering  the  property  to  the  lessor,  he  only  made 
arrangements  with  his  brother  to  take  care  of  the  property  for 
him;  and  his  brother's  subsequent  control  of  the  property  was 
not  that  of  owner,  but  simply  as  agent  for  him,  as  lessee,  and 
for  his  children,  as  the  owners  of  the  fee.  The  cross  bill  sought 
to  have  both  the  lease  and  the  deed  delivered  up  and  canceled. 
Both  issues  were  tried  together.  The  court  decreed  in  favor  of 
the  defendants,  and  thus  annulled  the  lease.  Had  the  decree 
been  in  fnvor  of  the  defendants,  the  effect  would  have  been  to 
establish  the  subsisting  validity  of  the  lease,  as  well  as  of  the 
deed,  and  the  estate  would  have  been  diminished.'  He  was 
clearly  incompetent,  under  the  statute. 

The  testimony  of  the  witness  Olin  as  to  the  statement  of  Mar- 
tin C.  Bissell  made  in  his  own  favor  long  after  the  deed  took 
effect,  if  it  ever  took  effect,  were  also  improperly  received. 
The  deed  took  effect  in  1875,  when  it  was  executed,  acknowl- 
edged, and  delivered,  if  it  ever  was  delivered.  If  the  deed  be- 
came effective  in  1875,  it  would  not  be  rendered  inoperative  by 
anything  the  grantor  could  say  10  years  later.  If  it  was  a  ques- 
tion to  be  determined  from  the  evidence,  as  it  certainly  was, 
whether  the  deed  did  become  effective  or  not  in  1875,  hearsay 
evidence,  or  the  declarations  of  a  party  in  interest,  in  his  own 

42 


658        THE    REQUISITES    AND    COMPONKNT    TARTS    OF    A    DEED. 

favor,  m:ule  long  afterwards,  in  the  iil)sencc  of  the  other  party, 
could  not  bo  received  to  aid  in  delerminin*;  such  question. 

Counsel  for  defendants,  however,  strenuously  contend  that 
this  testimony  was  proper,  as  showing  that  it  was  not  the  inten- 
tion of  the  o-rantor  that  the  deed  should  take  effect  as  a  volun- 
tary  settlement,  and  cite  the  following  cases  in  suppoit  of  their 
contention:  Cline  v.  Jones,  111  III.  5f)8  ;  Bovce  v.  Hinde,  135 
III.  148;  25  N.  E.  694  ;  Barnum  v.  Reed,  136  III.  398  ;  26  N.  E. 
572;  and  Price  v.  Hudson,  125  111.  287  ;  17  N.  E.  817,  —which 
last  case,  it  is  insisted  by  counsel,  is  conclusive  of  the  question. 
We  find  nothing  in  that  case  changinij  the  rule  long  established. 
This  court  there  said:  "Any  disposition  made  of  the  deed  by 
the  grantor,  with  the  intention  thereby  to  make  a  delivery  of  it, 
so  that  it  shall  become  presently  effective  as  a  conveyance  of  a 
title,  will,  if  accepted  by  the  grantee,  constitute  a  sufBcient 
delivery.  3  Washb.  Real  Prop.  288-293;  Benneson  v.  Aiken, 
102  III.  284.  The  intention  to  deliver,  on  the  one  hand,  and  of 
acceptance,  on  the  other,  may  be  shown  by  direct  evidence  of 
the  intention,  or  may  be  presumed  from  acts  or  declaration  — 
or  both  acts  and  declaration  —  of  the  parties  constituting  parts 
of  the  res  gestae^  which  manifests  such  intention  ;  and,  in  like 
manner,  the  presumption  of  a  delivery  may  be  rebutted  and 
overcome  by  proof  of  a  contrary  intention,  or  of  acts  and  declar- 
ations from  which  the  contrary  presumption  arises.  It  is  not 
competent  to  control  the  effect  of  the  deed  by  parol  evidence, 
when  it  has  once  taken  effect  by  delivery;  but  it  is  always  com- 
petent to  show  that  the  deed,  although  in  the  grantee's  hands, 
has  never  in  fact  been  delivered,  unless  the  grantor,  or  those 
claiming  through  him,  are  estopped  in  some  way  from  asserting 
the  nondelivery  of  the  deed."  Neither  the  facts  in  that  case, 
nor  the  language  used,  warrant  the  inference  drawn  from  the 
case  by  defendant's  counsel,  nor  do  the  other  cases  cited  lay 
down  any  different  rule.  As  to  whether  Martin  C.  Bissell  con- 
tinued to  deal  with  the  property,  and  the  grantees  permitted  him 
to  continue  to  deal  with  it,  as  his  own,  after  the  execution  of 
the  deed,  other  witnesses  were  examined  ;  but  it  was  clearly 
erroneous  to  admit  and  consider  the  testimony  of  Judge  Olin  as 
to  statements  made  to  him  ])y  Mr.  Bissell,  when  drafting  his  will, 
to  the  effect  that  he  still  owned  the  hotel  propertv,  and  had  never 
given  it  to  plaintiffs  in  error.  Guild  v.  Hill,  127  III.  523;  20  N. 
E.  665;  Massey  v.  Huntington,  118  III.  80;  7  N.  E.  269;  Dickie 
V.  Carter,  42  111.  377;  Long  v.  Long,  19  III.  App.  389;  Id. 
118  111.  638  ;  9  N.  E.  247.  These  statements  had  no  connection, 
either  in  time,  place  or  circumstance,  with  the  statements  made 
to  the  witnesses  Stevens  and  Dirkman  to  the  effect  that  the  prop- 


DELIVEUY    TO    A    STRANGER.  ()59 

erty  belonged  to  his  brother's  children,  and  that  he  was  attend- 
ing to  it  for  them  and  his  brother,  and  did  not  tend  to  disprove 
such  statements,  as  supposed  by  counsel.  These  latter  state- 
ments were  properly  received  as  admissions  by  the  grantor;  as 
statements  against  his  interest.  They  tended  to  show  that  he 
considered  the  deed  as  having  taken  effect,  and  that  the  title  had 
vested  in  the  grantees.  They  also  tended  to  explain  his  acts  in 
dealing  with  the  property  after  having  conveyed  it. 

But  the  question  still  arises  whether  or  not,  after  considering 
all  proper  evidence  and  rejecting  all  held  to  be  improper,  the  de- 
cree of  the  trial  court  can  be  sustained.  ♦'  No  particular  form  or 
ceremony  is  necessary  to  constitute  a  delivery  "  of  a  deed.  **  It 
may  be  by  acts  without  words, or  by  words  without  acts,  or  by  both. 
Anything  which  clearly  manifests  the  intention  of  the  grantor  and 
the  person  to  whom  it  is  delivered  that  the  deed  shall  presently 
become  operative  and  effectual,  that  the  grantor  loses  all  con- 
trol over  it,  and  that  by  it  the  grantee  is  to  become  possessed  of 
the  estate,  constitutes  a  sufficient  delivery.  The  very  essence  of 
the  delivery  is  the  intention  of  the  party."  Bryan  v.  Wash,  2 
Gilman,  557  ;  Cline  v.  Jones,  111  111.  563,  and  cases  there  cited. 
It  is  well  settled  that  the  law  makes  stronger  presumptions  in 
favor  of  the  delivery  of  deeds  in  cases  of  voluntary  settlements, 
especially  in  favor  of  infants,  than  in  ordinary  cases  of  bargain 
and  sale.  The  acceptance  by  the  infant  will  be  presumed.  And 
it  is  even  held  that  an  instrument  may  be  good  as  a  voluntary 
settlement,  though  it  be  retained  by  the  grantor  in  his  possession 
until  his  death,  providing  the  attending  circumstances  do  not 
denote  an  intention  contrary  to  that  appearing  upon  the  face  of 
the  deed.  Bryan  v.  Wash  and  Cline  v.  Jones,  supra;  Keed  v. 
Douthit,  62  III.  348;  Walker  v.  Walker,  42  III.  311;  Otis  v. 
Beckwith,  49  III.  121;  Masterson  v.  Check,  23  III.  72;  louver- 
bye  V.  Arden,  1  Johns.  Ch.  242;  Bunn  v.  Winthrop,  Id.  329; 
Scrugham  v.  Wood,  15  Wend.  545  ;  Perry  Trusts,  §  103;  Urann 
V.  Coates,  109  Mass.  581  ;  Thompkins  v.  Wheeler,  16  Pet.  114. 
And  it  was  said  in  Walker  v.  Christen,  121  111.  97;  11  N. 
E.  893,  that  "  the  crucial  test,  in  all  cases,  is  the  intent 
with  which  the  act  or  acts  relied  on  as  the  equivalent  or 
substitute  for  actual  delivery  were  done."  The  deed  in  question 
must  have  taken  effect  at  once  upon  its  acknowledgment  and 
delivery  to  Grinton,  or  not  at  all;  and  the  real  question  is  with 
what  intention  was  the  deed  placed  in  the  hands  of  Grinton? 
Blackman  v.  Preston,  123  III.  385  ;  15  N.  E.  42;  Haves  z;.  Boy- 
Ian,  141  111.  480;  30  N.  E.  1041  ;  Bovee  v.  Hinde,  135  III.  137; 
25  N.  E.  694  ;  and  cases  supra.  Nothing  was  said  by  the  grantor 
ftt  that  time  to  indicate  an  intention  that  the  deed  should  not  take 


660       THE    REQUISITES   AND    COMPONENT    PARTS    OF    A    DEED. 

effect.  His  instructions  wore  to  take  the  deed,  and  take  care  of 
it,  —  whether  for  himself  or  the  grantees,  he  did  not  say.  The 
grantees  were  his  nephews  and  nieces,  seven  in  nurnhcr  ;  the  adults 
livins;  in  dillerent  j)lacos,  and  the  minors,  with  their  fat  lier,  his 
brother,  on  the  pieiuises  conveyed.  Under  tiio  circumstances, 
it  may  have  been  a  question  of  some  difHculty,  in  his  mind,  to 
determine  to  whom  the  deed  should  be  delivered.  Instead  of  de- 
livering it  to  either  of  the  grantees,  he  could  lawfully  deliver  it 
to  a  third  person  for  their  benefit.  He  did  deliver  it  to  a  third 
person,  and  whether  for  their  benefit,  or  only  as  a  custodian  for 
himself,  is  a  question  of  fact  to  be  determined  from  the  evi- 
dence. Defendants  insist  that  Grinton  was  the  grantor's  clerk, 
and  that  his  possession  was  the  possession  of  the  grantor. 
It  is  not  clear  from  the  evidence  what  the  business  rela 
tions  were  between  Grinton  and  Martin  C.  Bissell.  Grinton 
testified  that  he  was  not  employed  by  the  day,  week,  month, 
or  year;  that  he  always  had  a  partnership  contract  with  Mr. 
Bissell  in  the  profits,  and  that  that  was  the  case  when  these 
papers  were  executed;  that  the  "partnership  papers,"  as  wit- 
ness called  them,  as  well  as  his  individual  papers  and  those  of 
Martin  C.  Bissell,  were  all  kept  in  the  safe.  Whether  he  was 
responsible  for  the  losses  and  expenses  of  the  business  is  not  dis- 
closed by  the  evidence.  From  the  evidence  given,  he  may  have 
been  a  partner  in  business  with  Bissell,  or  merely  an  employee 
receiving  a  share  of  the  profits  as  a  measure  of  his  pay  for  his 
services.  In  Lockwood  v,  Doaiie,  107  111.  235,  this  court  held 
that;  "Where  partners  agree  to  share  in  the  profits  of  business, 
the  law  will  infer  a  partnership  between  them  in  the  business  to 
which  the  agreement  refers,  but  this  presumption  may  be  dis- 
proved. It  is  prima  facie  evidence,  and  will  control  until 
rebutted."  Niehoff  v.  Dudley,  40  111.  406.  Under  the  evi- 
dence and  these  authorities,  it  would  seem  that  the  relation 
between  Grinton  and  Martin  C.  Bissell,  at  the  time  of  the 
transaction  in  question,  must  be  treated  as  that  of  a  partner- 
ship. If  so,  the  transaction  not  pertaining  to  their  partner- 
ship affairs,  possession  of  the  deed  by  Grinton  was  not,  by 
virtue  of  their  relation,  the  possession  of  the  grantor,  but  was 
the  possession  of  a  third  person.  Grinton  took  his  deed,  and 
placed  it  in  an  envelope,  and  put  it  in  the  safe,  and  kept  it  in  his 
possession  for  15  years  thereafter,  until  the  trial  in  the  circuit 
court.  Had  Martin  intended  to  retain  control  of  it,  he  could  as 
well  have  placed  it  with  his  own  papers  in  the  safe.  This  he  did 
not  do,  nor  did  he  ever  assume  or  assert  any  control  over  the 
deed  afterwards.  Grinton  was  a  notary  public,  and  as  such  took 
the  acknowledgment.     By  this   acknowledgment    the  grantors 


DELIVERY   TO    A    STRANGER.  661 

acknowledged  that  they  signed,  sealed,  and  delivered  the  instru- 
ment as  their  free  and  voluntary  act,  for  the  uses  and  purposes 
expressed  in  it.     Whether,  on  an  issue  as  to  the  delivery  of  a 
deed,  otherwise  left  in  doubt  by  the  proofs,  such  an  acknowledg- 
ment would  be  sufficient  evidence  of  a  delivery,  it  is  not  neces- 
sary in  this  case  to  decide  ;  for,  as  we  conceive,  the  intention  of 
the  grantor  is  otherwise  disclosed  by  the  evidence  with  sufficient 
clearness,  and  this,  too,  whether  Grinton  was   a  partner  or  a 
mere  employee  of  Martin  C.  Bissell.     We  find  nothing  in  the 
attending  circumstances  denoting  an  intention  on  the  part  of  the 
grantor    that   the    deed    should    not    take    effect ;    but    on    the 
contrary,  there  is  sufficient  evidence  that  he  intended  the  deed 
to  become  presently  effective.     He  at  the  same  time  executed 
and  delivered  to  his  brother,  the  father  of  plaintiffs  in  error, 
and  to  his  brother's  wife,  who  were  already  in  possession  of  the 
property,   a  life   lease    therefor.     The   deed  was,   on  its  face, 
made  subject  to  the  lease.     By  the  lease  the  lessees  were  required 
to  insure  the   pro[)erty  for   the  benetit,  in  part,  for  themselves, 
and  in  part  for  the  grantees.     The  lease  recognized  the  grantees 
as    the  owners    of   the    property,  and,  for    breach    of   any    of 
the  covenants   in  the    lease,  they    were    authorized    to    declare 
the  term  ended,  and  to  enter,  and  expel  the  lessee.     The  lease 
and  deed  were  executed  together,  and  were  parts  of  the  same 
transaction,  whereby  Martin  C.  Bissell  disposed  of  all  his  interest 
in  the  possession  of  and  title  to    the    property.     He    reserved 
nothing  in  either  the  lease  or  deed.     The  delivery  of  the  lease 
to,  and  the  possession    of   the  property    by,   William,  are  not 
disputed.     The  right  to  declare  a  forfeiture  and  to  re-enter  was 
not  reserved  to  the  lessor,  but  to  plaintiffs  in  error,  the  grantees 
in  the  deed.     It  would  seem  from    this  provision  that,  at  the 
time  of    the  transaction,  Martin   C.  Bissell    intended   that   the 
title  should  vest  in  appellants;  and  that  he  understood  it  did  so 
vest.     Then,  again,  it  was  clearly  proved  that  after  William  had 
left  the  property,  and  Martin  had  taken  possession  and  made 
repairs,  he  leased  it,  paid  the  taxes,  and,  to  all  outward  appear- 
ances, acted  as  the   owner.     He    told  two   witnesses   that  the 
property  belonged  to  his  brother's  children,  and  that  he  could 
not,  for  that  reason,  sell  or   dispose  of  it,  but   would    attend 
to  it — evidently   meaning  that   he    was   taking  care    of  it  for 
his  brother  and  his   brother's  children.     It  may  be  that  after 
the    lapse    of    years  he  concluded  that  he  was  entitled  to  and 
would   retain   the    property    as   his  own.     In   other  words,  he 
may  have   changed   his    mind    in    reference   to    making    a   gift 
of  the  property  to  these  beneficiaries,  honestly  concluding  that 
under   the   circumstances   be  had  a  right  to  do  so,  but  if  he 


662      THE   REQUISITES    AND    COMPONENT   PARTS   OF   A   DEED. 

did  80  conclude  he  was  simply  mistaken  as  to  the  legal  effect  of 
what  had  been  done.  The  facts  are  somewhat  similar  to  those 
in  Doucjlas  v.  West,  140  111.  461;  31  N.  E.  403.  See,  also, 
Winterbottom  v.  Pattison,  152  111.  334;  38  N.  E.  1050.  We 
are  satisfied  from  the  evidence  that  Martin  C.  Bisscll  intended 
that  the  deed  should  take  effect  when  he  executed  and  ac- 
knowledired  it  and  delivered  it  to  Grinton,  and  it  must  be  so 
held.  The  decree  of  the  circuit  court  is  reversed,  and  the 
cause  remanded,  with  directions  to  dismiss  the  cross-bill,  and  to 
enter  a  decree  in  accordance  wjth  the  prayer  of  the  bill  of  ph.in- 
tiffs  in  error.     Reversed  and  remanded. 


Escrow. 

Goodpasters  v.  Leathers,  123  Ind.  121;  23  N.  E.  1090. 

Mitchell,  C.  J.  The  facts  specially  found  by  the  court  show, 
ijiler  alitty  that  on  the  4th  day  of  February,  1878,  .Tames  Madi- 
son Leathers,  being  the  owner  of  a  certain  tract  of  land,  exe- 
cuted a  deed  in  substance  as  follows:  '*  This  indenture  wit- 
nesseth  that  I,  James  Madison  Leathers,  of  Morgan  County,  in 
the  State  of  Indiana,  convey  and  warrant  to  Phebe  Tucker 
Leathers,  my  wife,  and  Florence  Mabel  Leathers  and  James  M. 
Leathers,  Junior,  on  condition  of  the  support  of  Phebe  T. 
Leathers,  their  mother,  otf  of  said  lands  described  below,  in 
Morgan  County,  in  the  State  of  Indiana,  for  the  natural  love 
and  affection  I  have  for  said  above  parties,  the  following  real 
estate  in  Morgan  County,  in  the  State  of  Indiana,  to  wit."  Then 
follows  a  description  of  the  land,  the  formal  attestation  clause, 
and  an  acknowledgment  of  the  instrument  in  due  form.  The 
court  stated,  as  a  conclusion  of  law,  that  the  above  conveyance; 
vested  in  Phebe  Tucker  Leathers,  wife  of  the  grantor,  an  estatt? 
for  life  in  one-third  of  the  lands  described  therein,  and  that  the 
fee  to  the  whole  estate  was  vested  in  Florence  M.  and  James  M. 
Leathers,  charged  with  the  support  of  their  mother.  We  do 
not  concur  in  this  conclusion.  The  land  is  granted  to  the 
three  grantees  therein  named  in  plain  and  unambiguous  lan- 
guage. The  effect  of  the  deed  was  to  vest  an  estate  in  fee- 
simple  in  the  mother  and  two  children  as  tenants  in  common, 
each  taking  an  undivided  one-third,  and  to  charge  the  income 
from  the  whole  with  the  support  of  the  mother.  Stout  v. 
Dunning,  72  Ind.  343;  Williams  v.  Owen,  116  Ind.  70;  18 
N.  E.  Rep.  389;  Commons  v.  Commons,  115  Ind.  162;  16  N.  E. 
Rep.  820,  and  17  N.  E.  Rep.  271.  The  intention  of  the  parties 
is  what  the  law  addresses  itself  to  in  the  construction  of  deeds, 


WHAT   CONSTITUTES   NOTICE — DEED    NOT   RECORDED.  663 

but  the  intention  is  to  bo  gathered  from  the  language  found  in 
the  instrument.  The  entire  deed  is  to  be  regarded,  and  when 
the  language  is  unambiguous,  and  the  intent  plaioly  appears 
upon  the  face  of  the  instrument,  there  remains  nothing  for  the 
court  to  do  but  to  give  the  deed  effect  according  to  the  terms 
written  therein.  There  is  nothing  in  the  circumstances  of  the 
present  case  which  justifies  a  construction  of  the  deed  so  as  to 
give  it  a  meaning  different  from  that  which  arises  upon  the  face 
of  tlie  instrument. 

Cross-errors  are  assigned,  and  in  support  of  these  it  is  sug- 
gested that  the  court  committed  error  in  holding  certain  answers 
sufficient,  because  it  is  said  it  appears  from  the  answers  that  the 
deed  in  question  was  never  delivered  by  the  grantor  in  his  life- 
time. The  facts  pleaded  do  not  sustain  this  view  of  the  case. 
It  appears  from  the  answers  that  the  deed  was  duly  signed  and 
acknowledged  by  the  grantor  in  his  lifetime,  and  that  it  was 
deposited  by  him  with  a  third  person,  with  instructions  to  de- 
liver it  to  his  widow  after  his  death,  and  that  it  was  delivered  to 
her  accordingly.  Where  a  grantor  signs  and  acknowledges  a 
deed,  and  deposits  it  with  a  third  person,  to  be  delivered  by  him 
to  the  grantee  at  the  death  of  the  grantor,  without  reserving  to 
himself  any  right  to  control  or  recall  the  instrument  if  the  deed 
is  afterwards  delivered  to  the  grantee  the  title  passes,  and  the 
deed  ordinarily  takes  effect,  by  relation,  as  of  the  date  of  the 
first  delivery.  Smiley  v.  Smiley,  114  Ind.  258;  16  N.  E.  Rep. 
585,  and  cases  cited;  Owen  v.  Williams,  114  Ind.  179;  15  N.  E. 
Kep.  678.  The  court  erred  in  its  conclusions  of  law.  The 
judgment  is  reversed,  with  costs,  with  instructions  to  the  court 
to  restate  its  conclusions  of  law  in  consonance  with  this  opinion, 
and  to  render  judgment  accordingly. 


What  Constitutes  Notice  When  Deed  is  Not  Recorded. 

Lindley  v.  Martindale,  78  Iowa,  379;  43  N.  W.  233. 

Appeal  from  district  court,  Polk  County;  Marcus  Kavanagh, 
Jr.,  Judge. 

Plaintiff  filed  her  bill  in  equity  to  set  aside  a  mortgage  exe- 
cuted by  Bayard  T.  Lindley  to  Mary  M.  Martindale,  to  restrain  the 
sheriff  from  making  a  deed  in  pursuance  of  the  foreclosure  of 
said  mortgage,  and  to  quiet  the  title  in  her  to  380  acres  of  land 
in  Guthrie  County,  Iowa,  conveyed  by  said  mortgage,  on  the 
alleged  ground  that  ai)pellant  was  the  owner  and  in  possession  of 
said  lands  at  the  time  the  mortgage  was  made,  and  that  the  same 
was   made  without  her  knowledge   or  consent.     The  facts,  as 


GG4        THE    REQUISITES    AND    COMPONENT    PARTS    OF    A   DEED. 

shown  by  tlio  evidence,  aud  necessary  to  bo  noticed,  are  that 
appellant  was  married  to  Elwood  Lindley  prior  to  1857,  and  re- 
ceived soon  after  from  her  father's  estate  about  $500  in  money  and 
property,  which  was  used  in  the  family  ;  that  in  1865,  her  husband 
gave  her  a  team  of  horses,  which  continued  to  be  used  in  the  family 
as  heretofore,  until  some  time  alter  when  the  same  wereexchanged 
for  IGO  acres  of  wild  land,  near  Stuart,  the  title  to  which  was  taken 
in  her  name,  and  the  value  of  which  was  materially  increased  by  the 
construction  of  the  Rock  Island  Railroad  so  that  it  was  afterwards 
sold  for  $33  per  acre.  With  the  proceeds  of  this  sale,  block  3, 
consisting  of  12  lots,  and  lot  11,  block  17,  in  Stuart,  was  pur- 
chased. A  dwelling  was  erected  and  occupied  by  the  family  on 
lot  3,  and  a  stone  building  on  lot  11,  which  was  occupied  by 
Elwood  Lindley  as  a  drug  store.  The  title  to  all  these  lots  was 
taken  in  Elwood  Lindley.  In  1874  he  conveyed  the  store  prop- 
erty to  the  plaintiff  and  in  the  same  year  the  plaintiff  secured  a 
divorce  from  him  and  decree  for  the  title  to  lot  11  and  all  of 
block  3,  the  homestead  of  the  family.  Thei'e  being  judgments 
against  Elwood  Lindley  that  were  liens  on  part  of  this  property, 
appellant's  brother,  John  Carter,  bought  the  lots  at  sheriff's  sale, 
and  took  mortgages  from  the  appellant,  which  she  afterwards 
paid.  In  1876  appellant  and  Elwood  Lindley  were  remarried 
and  lived  together  until  1884.  In  1876  lot  11  was  exchanged 
for  200  acres  of  the  land  in  question,  and  in  the  spring  of  1877, 
a  house  was  built  on  said  land,  and  occupied  by  the  Lindley 
family.  The  title  to  this  200  acres  was  taken  in  Bayard  T. 
Lindley,  the  son  of  appellant,  who  lived  with  the  family  and 
was  then  about  18  years  of  age.  The  family  continued  to 
live  in  said  house  until  the  fall  of  1884.  In  1882,  James  Cal- 
lanan  sold  by  contract  to  Bayard  T.  Lindley  120  acres  adjoin- 
ing said  200  acres,  Elwood  Lindley  conducting  the  negotations  ; 
and  in  the  same  year  Elwood  Lindley  contracted  with  Mr.  Corn- 
stock  for  the  other  40  acres  in  controversy.  In  1882,  Bayard  T. 
Lindley  and  his  wife  executed  a  warranty  deed  to  appellant  for 
the  100  acres  on  which  the  family  residence  was  situated,  but 
which  was  never  placed  on  record.  After  his  marriage,  in  1882, 
Bayard  T.  Lindley  resided  in  a  house  on  the  land  purchased  from 
Callanan.  In  June,  1884,  Elwood  Lindley  called  upon  Edward 
Martindale,  agent  for  his  wife,  Mary  M.  Martindale,  to  secure  a 
loan  of  $5,000  on  all  the  lands  in  controversy,  and  a  few  days 
thereafter  Edward  Martindale  visited  and  examined  the  lands. 
Elwood  Lindley's  family  were  then  residing  in  the  same  home, 
:ind  Bayard  T.  Lindley  on  the  Callanan  tract.  The  plaintiff  had 
been  partly  blind  since  1865.  The  management  and  cultiva- 
tion of  the  lands  had  been  by  Elwood    Lindley,  and  their  son, 


WHAT    CONSTITUTES    NOTICE DEED    NOT    RECORDED.       665 

BayarJ  Lindley,  from  the  time  they  were  purchased.  A  loan  of 
$5,000  was  consummated  on  the  12th  day  of  July,  1884,  Bayard 
T.  Lindley  and  his  wife  executing  the  mortgage  upon  the  whole 
of  the  lands  in  controversy  to  Mary  M.  Martindale  therefor. 
The  moneys  received  by  the  loan  were  applied  in  part  in  paying 
for  the  lands  purchased  from  Callanan  and  Comstock,  and  in 
paying  mortgages  placed  on  the  other  land  by  B.  T.  Lind- 
ley. Bayard  T.  Lindley  lived  in  the  family  of  his  parents 
on  the  200  acres  from  the  time  they  moved  there  until  his 
marriage,  in  1882,  after  which  he  lived  on  the  Callanan  land 
until  after  the  visit  of  Mr.  Martindale.  These  facts  appear 
with  but  little,  if  any,  controversy.  There  is  controversy  as  to 
whether  plaintiff  knew  that  the  title  to  the  200  acres  was  placed 
in  her  son.  In  her  original  petition  she  alleged  "  that  she  caused 
the  legal  title  to  said  lands,  as  she  purchased  the  same,  to  be 
made  out  in  favor  of  the  said  B.  T.  Lindley,  then  about  eighteen 
years  of  age."  In  an  amendment,  filed  after  the  cause  had  been 
submitted,  she  alleges  that  the  title  was  placed  in  B.  T.  Lindley 
"  without  the  knowledge  or  consent  of  either  the  said  B.  T.  Lind- 
ley or  the  said  jilaintiff,"  and  that  neither  knew  the  title  was  so 
placed  until  long  afterwards.  Also  it  is  questioned  whether  she 
knew  of  the  execution  of  the  mortgage  to  Mrs.  Martindale,  and 
whether  Martindale  was  told  at  the  time  of  his  visit  to  the  farm 
that  it  belonged  to  Mrs.  Lindley.  Plaintiff  bases  her  claim  for 
relief  on  the  grounds  that,  the  title  to  the  200  acres  being  vested 
in  Bayard  T.  Lindley  without  her  knowledge,  a  trust  resulted  in 
her  favor,  and  that  he  held  it  in  trust  for  her;  that,  she  being  in 
actual  possession  at  the  time  of  the  execution  of  the  $5,000 
mortgage,  Mrs.  Martindale  and  her  agent  were  bound  to  take 
notice  of  her  rights  in  the  lands;  and  that,  the  mortgage  being 
executed  without  her  knowledge  or  consent,  she  is  not  bound 
thereby. 

Given,  C.  J.  1.  Appellee  presents  several  questions  as  to 
the  state  of  the  record,  and  as  to  whether  there  is  an  appeal  as  to 
the  defendant  B.  T.  Lindley.  We  think  the  merits  of  the  case 
are  fully  presented  in  the  record  before  us,  and,  as  B.  T.  Lind- 
ley has  appeared  and  filed  his  argument,  we  have  considered  the 
case  upon  its  merits  without  passing  upon  these  questions. 

2.  As  title  to  lot  11  (the  store-house  property  in  Stuart,  which 
was  given  in  exchange  for  the  200  acres)  was  decreed  to  plaintitF 
in  her  divorce  proceedings,  we  do  not  inquire  back  of  that  in 
determining  whether  it  was  the  plaintiff's  means  that  purchased 
the  200  acres. 

3.  The  weight  of  the  testimony  is  in  favor  of  the  conclusion 
that  neither  the  plaintiflf  nor  B.  T.  Lindley  knew  at  the  time  of 


666        THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DKED. 

the  conveyance  that  the  title  to  the  200  acres  was  j)lacecl  in  B. 
T.  Lindley.  She  was  at  the  time  at  least  partially  incapacitated 
by  blindness  from  transacting  business,  and  this,  as  well  as  most 
of  the  other  transactions,  was  managed  by  her  husband  with  her 
consent.  It  is  evident,  however,  that  she  became  aware  of  the 
fact  that  the  title  was  in  her  son  long  before  the  execution  of  the 
mortgage  in  question.  Her  means  having  paid  for  the  land,  and 
the  title  being  made  to  the  son  without  her  knowledge,  the  law 
will  imply  a  trust  in  her  behalf. 

4.  The  doctrine  contended  for  by  appellant,  that  the  pur- 
chaser of  real  estate  takes  the  same  charged  with  notice  of  the 
equities  of  the  parties  in  possession  at  the  time  of  the  purchase, 
is  well  settled  in  this  State.  Phillips  v.  Blair,  30  Iowa,  649, 
and  authorities  cited.  Such  possession  "must  appear  affirma- 
tively to  have  been  open,  visible,  exclusive,  and  unambiguous  ; 
such  as  is  not  liable  to  be  misunderstood  or  misconstrued.  3 
Washb.  Real  Prop.  284.  All  these  lands  had  been  cared  for 
and  cultivated  either  by  Elwood  or  B.  T.  Lindley  for  a  long 
time  prior  to  Mr.  Martindale's  visit.  At  the  time  of  his  visit, 
Elwood  Lindley,  who  was  negotiating  the  loan,  and  his  family 
were  residing  on  the  200  acres,  and  B.  T.  Lindley  on  the 
Callanan  tract  adjoining.  It  would  certainly  not  appear  from 
this  state  of  facts,  to  one  who  had  been  told  that  the  title  was 
in  B.  T.  Lindley,  that  his  mother,  Mrs.  Lindley,  was  in  the 
open,  visible,  exclusive,  and  unambiguous  possession  of  the  land. 
The  reasonable  inference  would  be  that  B.  T.  Lindley,  who 
held  the  title,  was  in  possession.  Where  husband  and  wife 
occupy  real  estate  together,  the  inference  would  be  in  the  ab- 
sence of  further  information,  that  it  was  the  husband's  posses- 
sion. Thomas  v.  Kennedy,  24  Iowa,  397  ;  Trust  Co.  v.  King, 
58  Iowa,  598;  12  N.  W.  Rep.  595.  In  this  case  the  question 
was  as  to  whether  the  property  was  in  the  possession  of  Mrs. 
King  or  her  son.  The  court  held  that  the  legal  possession 
was  in  Mrs.  King  and  her  husband.  Where  mother  and  son 
occupy  the  property,  the  same  inference  as  to  possession  does 
not  arise  as  where  occupied  by  husband  and  wife.  In  the 
case  of  King,  it  was  shown  that  at  the  time  and  after  the 
mortgage  was  executed  Mrs.  King  was  in  the  actual  posses- 
sion and  occupancy  of  the  j^roperty  but  it  was  insisted  that 
her  possession  was  not  such  as  to  impart  notice  to  the  world 
of  her  equities.  The  property  consisted  solely  of  lot  and 
dwelling  thereon,  wherein  Mrs.  King,  her  husband,  and  family 
resided.  The  court  say  it  was  a  legal  possession  in  Mrs.  King 
and  her  husband.  We  think  the  facts  in  this  case  fail 
to    show  such    a  possession  in  the  plaintiff  and  her  husband. 


WHAT    CONSTITUTES    NOTICE DEED    NOT   RECORDED.       6G7 

Instead  of  a  single  lot  and  dwelling  we  have  several  parcels  of 
land  with  different  dwellings,  lands  that  hud  been  cultivated  and 
used  by  others  than  the  plaintiff,  and  without  any  apparent 
authority  from  her.  In  Thomas  v.  Kennedy,  supra^  there  being 
no  building  upon  the  land,  the  husband  was  upon  the  ground 
assisting  and  directing,  apparently  for  himself,  the  fencing  and 
breaking  of  the  land  ;  no  one  knowing  by  any  public  declaration 
or  act,  or  otherwise,  that  the  work  was  being  carried  on  for  the 
wife,  nor  that  the  possession  taken  was  for  her.  The  court  say; 
"  We  are  not  prepared  to  hold  that  under  such  circumstances 
third  parties  would  be  affected  with  notice  of  the  wife's  posses- 
sion. In  other  words,  they  could  as  well,  and  indeed  more 
reasonably  presume  that  the  possession  was  that  of  the  husband 
as  of  the  wife  ;  and  it  would  be  carrying  the  doctrine  of  notice 
to  an  unusual  extent  to  hold  that  the  world  was,  without  more, 
bound  to  know  that  ho  was  in  possession  and  making  improve- 
ments for  her.  From  the  facts  of  the  case  one  knowing  the 
relations  of  the  parties  and  nothing  as  to  title,  would  infer  that 
Elwood  Lindley  was  in  possession,  and  knowing  the  title  to  be 
in  B.  T.  Lindley,  would  infer  that  he  was  in  possession.  It  is 
contended  that  Mr.  Martindale  had  actual  notice  that  the  lands 
belonged  to  Mrs.  Lindley.  Elwood  and  B.  T.  Lindley  both  tes- 
titied  that,  at  the  time  Mr.  Martindale  visited  the  farm,  Elwood 
Lindley  told  him,  "  in  substance,  that  he  would  find  the  title  all 
right  in  B.  T.  Lindley,  but  the  farm  in  fact  belonged  to  Mrs. 
Lindley."  This  statement  is  denied  by  Mr.  Martindale.  The 
truth  of  this  matter  is  not  necessarily  determined  by  the  number 
of  witnesses.  We  think  the  fact  that  Martindale,  a  lawyer, 
versed  in  such  transactions,  made  the  loans  as  he  did  for  his  wife, 
without  any  inquiry  or  action  with  reference  to  the  rights  of 
plaintiff,  satisfies  us  that  he  never  understood  such  a  statement 
to  be  made.  We  are  not  convinced  that  such  a  statement  was 
ever  made  to  Martindale.  We  conclude,  therefore,  that  Martin- 
dale nuide  the  loan  without  any  knowledge,  actual  or  constructive, 
of  Mrs.  Lindley's  equities  in  the  land. 

5.  Assuming,  for  the  purpose  of  further  inquiry,  that  Mrs. 
Lindley's  possession  was  such  as  to  put  Mr.  Martindale  upon 
inquiry,  we  inquire  whether,  in  permitting  the  title  and  con- 
trol of  the  lands  to  remain  in  her  son,  as  she  did,  she  is  not 
now  estopped  from  asserting  her  title  against  Mrs.  Martin- 
dale's  mortgage?  She  permitted  her  son,  Bayard,  to  culti- 
vate the  lands,  and  dispose  of  the  crops  as  his  own  for  some 
time.  The  deed  to  Ba3'ard  for  the  200  acres  was  executed  Oc- 
tober 17,  1876.  December  7th  following,  he  mortgaged  to 
Farwell  for  $700;   to  lielliker,  June  1,  1880,  $1,200;  a  second 


668         THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

mortgage  to  Helliker,  June  1,  1880,  $120;  to  Dewey,  July 
18,  1882,  $982;  and  to  Martindalc,  executed  June  19,  and  re- 
corded July  17,  1884,  $5,000.  The  plaintiff  knew  of  the  exe- 
cution of  the  mortgage  to  Farwell  December  7,  1876,  and 
thereby  learned  that  the  title  to  the  200  acres  was  in  her  son. 
Bayard.  She  permitted  the  title  to  so  remain,  and  her  son  to 
exercise  control  as  he  did,  and  to  make  these  mortgages,  without 
in  any  way  disclosing  to  the  world  any  claim  upon  the  property. 
Her  husband,  whom  she  had  at  least  permitted  to  act  for  her  in 
all  matters,  with  her  son,  who  had  the  legal  title,  secured  $5,000 
of  Mrs.  Martindale's  money  that  went  to  pay  for  and  remove 
incumbrances  from  the  lands  in  question,  without  any  actual 
notice  that  Mrs.  Lindley  claimed  any  interest  in  the  land.  It 
would  be  most  inequitable  to  allow  Mrs.  Lindley,  under  these 
circumstances,  to  enjoy  the  benefits  of  this  loan  without  any  re- 
turn to  Mrs.  Martindale.  Mrs.  Lindley  put  it  in  the  power  of 
her  son  to  procure  this  money  from  Mrs.  Martindale,  most  of 
which  went  into  the  land.  Mrs.  Martindale  made  the  loan  in 
good  faith,  and,  if  either  must  suffer,  it  must  be  the  one  who 
made  it  possible  for  Bayard  T.  Lindley  to  effect  a  loan  upon  the 
lands  which  he  did  not  own.  These  conclusions  render  it  un- 
necessary to  notice  other  points  made  in  the  record.  The  decree 
of  the  district  court  is  affirmed. 


General   Description  of   Property,   when   Sufficient. 

Smith  V.  Westell,  7G  Tex,  509;   13  S.  W.  540. 

Commissioners'  decision.  Appeal  from  district  court,  Bra- 
zoria County. 

Action  by  T.  L.  Smith,  executor  of  Thomas  G.  Masterson, 
against  A.  E.  AVestall  and  another,  to  recover  a  tract  of  land. 
Plaintiff'  appeals. 

CoLLARD,  J.  No  specific  property  is  described  in  the  deed  to 
Rowe.  The  property  conveyed  is  "  all  that  certain  tract  or 
tracts,  parcel  or  parcels,  of  land  by  me  inherited,  by,  through, 
or  fiom  my  deceased  parents,  Henson  G.  Westall,  my  father, 
and  Harriet  Westal!,  my  mother,  situated  in  the  county  of  Bra- 
zoria or  Slate  of  Texas,  and  all  right  that  1  now  have,  have  had, 
or  may  have  to  any  estate  or  property  that  is  or  might  be  due 
ine,  whether  real,  personsd,  or  mixed,  in  this  county  or  State." 
An  explanatory  clause  follows  in  these  words:  "This  convey- 
ance is  meant  to  convey  and  carry  with  it  every  possible  interest 
that  I  now  have  or  may  have  to  any  property  in  this  county,  or 


TWO    CONFLICTING    COMPLETE    DESCRIPTIONS    OF    PROPERTY.    (369 

any  other  county  in  the  State  of  Texas."  The  deed  contained 
a  general  warranty. 

It  is  a  general  rule  that  a  deed  must  be  construed  so  as  to  give 
effect  to  all  its  parts,  if  it  can  be  done,  Hancock  v.  Butler,  21 
Tex.  804  ;  Pugh  v.  Mays,  60  Tex.  192  ;  3  VVashb.  Real  Prop. 
398.  The  deed  before  us  makes  at  least  two  grants:  First,  all 
lands  inherited  by  the  grantor  from  his  deceased  father  and 
mother,  without  qualification  or  restriction  ;  then,  of  all  other 
{)r(»perty,  real  and  personal,  he  owned,  had  owned,  or  might  own, 
derived  from  every  source.  The  next  part  of  the  grant  was  in- 
tended to  declare  that  every  possible  interest  in  any  property 
owned  or  held  by  the  grantor  in  the  State  was  to  pass.  It  was 
intended  to  enlarge,  rather  than  to  limit,  the  grant.  It  was  not 
intended  as  a  more  particular  designation  of  the  property,  and  to 
limit  the  conveyance  to  such  estate  only  as  the  grantor  then 
owned,  or  to  have  the  effect  of  quitclaiming  the  property. 

It  is  insisted  by  appellant  that  Rowe  was  not  an  innocent  pur- 
chaser, because  the  consideration  paid  by  him  was  an  antecedent 
debt.  The  fact  st  ited  is  true,  that  the  consideration  was  a  debt 
due  to  Rowe;  but  it  Vv^as  not  a  debt  due  by  Westall,  but  a  debt 
due  by  one  Bates  to  Rowe,  —  Bates  at  the  same  time  surrender- 
ing to  Westall  a  claim  against  him  for  the  same  amount,  $500. 
We  think  that  this  was  a  valuable  consideration,  and  one  that 
will  support  the  plea  of  innocent  purchaser.  Bates  gave  Rowe 
no  guaranty;  was  in  no  way  responsible  to  him  if  the  title 
failed,  or  the  interests  in  the  estates  purchased  proved  to  be  of 
no  value.  Rowe  surrendered  a  valuable  right,  was  in  a  worse 
position  than  before,  and  therefore  entitled  to  protection  as  an 
innocent  purchaser  having  no  notice  of  the  former  conveyance 
to  Masterson.  Paddon  v.  Taylor,  44  N.  Y.  371  ;  Ayres  v.  Du- 
prey,  27  Tex.  493,  607.  The  description  in  the  deed  was  suflB- 
cient,  and  it  passed  all  lands  in  the  State  vested  by  inheritance 
in  Westall  at  its  date.  Baxter  v.  Yarborough,  46  Tex.  231; 
Harvey  v.  Edens,  69  Tex.  420;  6  S.  W.  Rep.  306;  Bitnerv.  Land 
Co.,  67  Tex.  341;  3  S.  W.  Rep.  301.  We  conclude  the  judg- 
ment or  the  court  below  should  be  affirmed. 

Stayton,  C.  J.  Report  of  commission  of  appeals  examined, 
their  opinion  adopted,  judgment  affirmed. 


Two  Conflicting  Complete  Descriptions  of  Property. 

Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  111.  514;  49  N.  E.  1014. 

Bailey,  J.     This  was  a  suit  in  ejectment  brought  by  Eugene 
H.  Whitham  against  the  Lake  Erie  &  Western  Railroad  Company 


670  THE  REQUISITES  AND  COMPONF^NT    PARTS  OF  A  DEED. 

to  recover  Ji  stiii)  of  hiiul  forty  or  fift}'  feet  in  width,  and  y(!5 
feet  long,  lyinij  between  the  north  line  of  blocks  13  and  14  in 
the  village  of  Rankin,  Vermilion  County,  and  the  north  line  of 
the  S.  E.  \  of  section  11,  township  23  N.,  of  range  14  W.,  being 
a  part  of  the  land  claimed  l)y  the  defendant  as  its  right  of  way. 
The  suit  was  brought  November  2!),  Ib92  ;  the  declaration  con- 
sisting of  one  count,  which  describes  the  premises  and  alleges 
that  the  i)laintiff  is  the  owner  thereof  in  fee  simple.  The  de-, 
fendant  pleaded  "  Not  guilty,"  and  at  the  trial  which  was  had  at 
the  May  term,  1894,  of  the  circuit  court,  a  verdict  was  rendered 
finding  the  defendant  guilty,  and  finding  that  the  title  to  the 
premises  established  by  the  plaintiff  was  in  fee  simple.  Upon 
this  verdict  the  court,  after  denying  the  defendant's  motion  for 
a  new  trial,  gave  judgment  in  favor  of  the  plaintiff,  and  the  de- 
fendant now  brings  the  record  to  this  court  by  appeal. 

It  appears  from  the  evidence  that  the  village  of  Rankin  was 
laid  out  and  platted  about  November  14,  1872,  and  that  the 
plat,  with  the  accompanying  certificates,  was  filed  for  record  in 
the  office  of  the  recorder  of  Vermilion  County,  November  28, 
1872.  The  railroad  in  question,  of  which  the  defendant  is  now 
the  owner,  is  located  near  the  north  line  of  the  land  in  contro- 
versy, and  seems  to  have  been  built  and  in  operation  before  the 
plat  of  the  village  of  Rankin  was  filed  for  record  ;  it  having  been 
built  by  a  railroad  company  of  which  the  defendant  is,  or  claims 
to  be,  the  successor.  At  the  point  in  question  the  railroad  runs 
east  and  west,  and  is  crossed  by  Main  street,  —  a  street  running 
north  and  south,  —  near  the  center  of  the  village.  At  the  time 
the  village  was  platted,  William  A.  Rankin  and  David  Rankin, 
for  whom  the  village  was  named,  owned  the  W.  ^  of  section  12, 
on  which  that  part  of  the  village  east  of  Main  street  was  platted, 
while  George  Guthrie  owned  the  N.  E.  \  of  section  11,  or  all 
that  part  of  the  plat  lying  west  of  Main  street  and  north  of  the 
railroad,  and  the  heirs  of  Stanton  S.  Johnston,  deceased,  owned 
the  S.  E.  ^  of  section  11,  being  that  part  of  the  land  included 
in  the  plat  lying  west  of  Main  street  and  south  of  the  railroad. 
The  evidence  tends  to  show  that  at  the  time  the  village  of  Ran- 
kin was  platted  there  was  great  rivalry  between  Rankin  and  a 
small  place  about  a  mile  and  a  half  further  west,  known  as 
"  Pellsville,"  as  to  which  should  secure  the  railroad  station, 
and  that  the  owners  of  the  land  embraced  in  Rankin  were  dis- 
posed to  offer  very  considerable  inducements  to  the  railroad 
company  for  the  purpose  of  securing  the  station  for  their  own 
village.  William  A.  Rankin  seems  to  have  been  employed  by 
the  Johnston  heirs  in  platting  their  part  of  the  village,  and  the 
evidence  tends  to  show  that  they  agreed  to  give  him  each  alter^ 


TWO  CONFLICTING  COMPLETE  DESCRIPTIONS  OF  PROPERTY.       671 

iiiite  two  lots  throuo^lioiit  the  plat,  if  he  would  secure  the  sta- 
tion; th:it  Rankin,  acting  for  the  John.ston  heirs,  had  the  sur- 
veying done,  some  of  the  heirs  being  present,  and  one  or  more 
of  them  assisting  in  making  the  survey.  The  evidence  further 
tends  to  show  that  the  proprietors  of  the  several  tracts  of  land 
to  be  included  in  the  plat  instructed  the  surveyor  to  leave 
sufficient  ground  on  each  side  of  the  railroad  track  to  make,  with 
the  right  of  way  already  acquired  by  the  railroad  company,  a 
strip  100  feet  in  width,  and  that,  in  pursuance  of  such  instruc- 
tions, he  surveyed  and  laid  out  the  grounds,  and  made  the  plat 
so  as  to  leave  100  feet  on  each  side  of  the  railroad  through  the 
entire  village;  and  there  is  evidence  tending  to  show  that  it  was 
the  intention  of  the  parties  that  the  ground  so  left  should  be 
railroad  ground,  and  should  be  occupied  and  used  for  railroad 
purposes.  The  strips  of  land  thus  left  not  being  "  marked 
or  noted  on  the  plat  as  donated  or  granted  "  to  the  railroad  com- 
pany, it  is  not,  and  cannot  well  be,  claimed  that  the  plat  oper- 
ated as  a  conveyance  thereof  to  the  railroad  company,  under  the 
provisions  of  section  3  of  chapter  109  of  the  Revised  Statutes  ;  but 
it  is  contended  on  behalf  of  the  company  that  the  plat,  when 
considered  in  connection  with  the  evidence  of  the  contempora- 
neous and  subsequent  acts  of  the  parties,  tends  to  establish  a 
common-law  dedication  of  the  land  to  the  company,  for  its  use 
as  a  part  of  its  right  of  way.  This  contention,  which  raises  one 
of  the  principal  questions  presented  by  the  record,  will  be  more 
fully  noticed  hereafter.  The  plaintiff,  to  establish  title  in  him- 
self to  the  lands  in  question,  offered  in  evidence  certain  pro- 
ceedings in  chancery  between  the  heirs  of  Stanton  S.  Johnston, 
deceased,  for  partition,  in  which  it  was  alleged  in  the  bill,  and 
found  by  the  decree,  that  Stanton  S.  Johnston,  in  his  lifetime, 
was  seised  of  an  equitable  estate  in  these  lands,  by  virtue  of  a 
contract  for  the  sale  thereof  to  him  by  the  Illinois  Central  Rail- 
road Company,  and  that  after  his  death  certain  deeds  were  exe- 
cuted, by  which  the  legal  title  was  conveyed  to  his  heirs. 
Evidence  was  also  given,  not  only  that  his  heirs  were  thus  claiming 
title  in  fee  to  the  land,  but  that  before  the  village  of  Rankin  was 
laid  out  and  platted  they  were  in  possession  of  it.  The  [)laintiff 
then  offered  in  evidence  quitclaim  deeds  to  himself  from  each  of 
the  heirs  of  Johnston,  purporting  to  convey  to  him  all  lluir 
right,  title,  and  interest  in  the  land.  Several  specific  objections 
to  these  deeds  were  raised,  all  of  which  were  overruled,  and 
the  deeds  were  read  in  evidence.  The  decisions  of  the  court 
overruling  these  objections  are  now  assigned  for  error. 

Harriet  M.  Hutchinson  is  one  of  the  heirs  of  Johnston,  and 
one  of  the  deeds  offered  in  evidence  purports  to  be  executed  by 


672         THE  RKQUISITES  AND  COMPONFJNT  PARTS  OF  A  DEED. 

Joseph  M.  Hutoliinson  iind  Harriet  M.,  fDriiicrly  Harriet  M. 
Johnston,  his  wife,  party  of  the  first  part,  to  the  phuntiff,  party 
of  the  second  part,  ami  in  which  the  party  of  the  first  part,  for  a 
certain  consideration  therein  mentioned,  conveys  and  (|iiitchiinis 
to  the  party  of  the  second  part  all  interest  in  t!ie  hiiid  in  ques- 
tion. It  is  objected  that,  I>ccau8e  the  name  of  the  wife  is  placed 
after  that  of  her  husband,  it  will  be  intended  that  she  joined  with 
her  husband  merely  for  the  purpose  of  waiving  her  dower,  and 
not  for  the  purpose  of  conveying  her  estate.  It  is  sufficient  to 
say  that,  even  if  such  intendment  could  arise  under  other  cir- 
cumstances, it  is  completely  negatived  here  by  the  very  terms 
of  the  instrument,  since  she  appears  in  the  deed  as  one  of  the 
parties  conveying  and  quitclaiming  all  interest  in  the  land.  To 
hold  otherwise  would  do  violence  to  the  express  language  of  the 
deed. 

Again,  it  is  objected  that  the  certificate  of  acknowledgment  is 
insufficient  because  the  officer  before  whom  the  acknowledgment 
was  taken,  though  describing  himself  in  the  body  of  the  cer- 
tificate as  a  notary  public,  omitted  to  write  the  name  of  his  office 
under  his  official  signature.  As  he  professes,  in  the  body  of  his 
certificate,  to  be  a  notary  public,  and  to  be  acting  officially,  we  are 
of  the  opinion  that  the  omission  of  the  words  "  Notary  Public" 
after  his  signature  cannot  have  the  effect  of  renderinsf  his  cer- 
tificate  invalid.  His  official  character  and  the  fact  that  he  was 
acting  officially,  we  think,  sufficiently  appear.  The  objections 
to  this  deed  were  properly  overruled. 

A  deed  from  William  A.  Rankin  and  Mary  D.  Rankin, 
bis  wife,  bearing  date  November  23,  1892,  was  objected  to 
on  the  ground  that  the  certificate  of  acknowledgment  bears 
date  December  2,  1892  —  the  latter  date  being  after  the  suit  was 
commenced.  The  presumption  is  that  the  deed  was  delivered 
on  the  day  of  its  date,  and  the  fact  that  the  certificate  of 
acknowledgment  bears  a  later  date  is  not  sufficient  to  rebut  such 
presumption.  Deininger  v.  McConnell,  41  111.  227  ;  Jayne  v. 
Gregg,  42  111.  413  ;  Blake  v.  Fash,  44  111.  302 ;  Hardin  v.  Crate, 
78  III.  533.  There  is  evidence  tending  to  show  that  the  deed 
was  executed  and  acknowledged  in  a  different  county  from  that 
in  which  the  plaintiff  resided,  and  that  its  execution  was  pro- 
cured for  him  by  his  attorney  in  that  county  ;  and  while  he 
testifies  that  it  did  not  come  into  his  personal  possession  until 
after  it  was  acknowledged,  there  is  no  evidence  of  that  furnished 
by  the  dates  appearing  upon  the  instrument  itself,  tending  to 
show  the  date  of  its  delivery  to  his  attorney.  To  rebut  the  pre- 
sumption of  its  delivery  on  the  day  of  its  date,  it  was  necessary, 
under  these  circumstances,  to  produce  some  evidence  as  to  the 


TWO    CONFLICTING    COMPLETE    DESCRIPTIONS  OF   PROPERTY.    673 

time  of  its  delivery  to  the  plaintiff's  attorney,  and  there  being 
none,  the  presumption  cannot  be  said  to  be  rebutted. 

It  is  next  claimed  that  the  deed  from  Jane  M.  Johnston, 
William  O.  Johnston,  Scott  Johnston,  and  Martha  E.  John- 
ston to  Benjamin  R.  Cole  conveyed  the  interest  of  the  grantors 
in  only  a  part  of  the  land  in  controversy,  and  consequently 
that  the  plaintiff  has  failed  to  show  that  he  has  become  vested 
with  their  title  to  the  residue.  This  deed  purports  to  con- 
vey and  quitclaim  all  the  interest  of  the  grantors  "  in  the 
following  described  real  estate."  Then  follow  two  descrip- 
tions, by  metes  and  bounds,  the  land  lying  between  block  14 
and  the  north  line  of  the  quarter  section.  The  other  descrip- 
tion, which  in  the  deed  appears  in  a  separate  sentence,  is  as 
follows:  "Being  all  that  part  of  above-described  quarter  sec- 
tion lying  between  the  north  line  of  said  quarter  section  and 
blocks  thirteen  and  fourteen  in  the  village  of  Rankin."  Here  are 
two  descriptions,  each  complete  in  itself,  one  embracing  only 
that  portion  of  the  quarter  section  lying  north  of  block  14,  and 
the  otlier  that  portion  lying  north  of  both  blocks.  It  seems  plain 
that  under  these  circumstances,  effect  must  be  given  to  the 
larger,  as  well  as  to  the  moie  restricted  description.  Such  in- 
terpretation does  no  violence  to  either,  but  gives  full  force  to 
both.  Were  there  any  necessary  incongruity  between  the  two 
the  more  restricted  description  might  perhaps  be  rejected,  so 
long  as  the  conclusion  fairly  ari-es  from  the  entire  instrument 
that  the  grantors  intended  to  convey  their  interest  in  the  whole 
tract;  but,  there  being  no  such  incongruity  between  them,  noth- 
ing need  be  rejected,  and  all  parts  of  the  description  may  be 
retained  and  given  force. 

It  is  also  claimed  that  the  deed  from  Cole  and  wife  to  the 
plaintiff  is  not  shown  to  have  been  delivered  before  the  com- 
mencement of  the  suit.  That  deed  bears  date  November  23, 
1892,  and  the  certificate  of  acknowledgment  is  dated  November 
29,  1892.  The  suit  was  brought  on  the  date  last  named,  and  the 
plaintitf  testifies  that  the  deed  was  received  by  him  directly  from 
Cole,  and  that  he  received  it  the  day  it  was  acknowledged,  but 
that  it  came  to  his  hands  before  the  suit  was  commenced.  His 
testimony  upon  this  point  is  sought  to  be  weakened  on  his  cross- 
examination  by  eliciting  from  him  the  fact  that  he,  on  the  day 
the  deed  was  received,  was  in  Rankin,  while  the  suit  was  com- 
menced at  Danville,  and,  therefore,  that  he  could  not  have  known 
the  exact  time  of  the  issuing  of  the  summons  in  the  suit.  He, 
however,  persists  in  saying  that  according  to  his  understanding 
the  suit  was  not  commenced  at  Danville  until  after  the  deed 
was  delivered  to  him   at  Rankin ;   and,  there  being  no  evidence 

43 


674       THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

to  the  contrary,  wc  think  his  testimony,  while  not  very 
satisfactory,  is  snfiicicnt  to  show,  prima  facie ^  that  the  deed 
cnnie  to  the  phiintilF's  hands  before  the  summons  in  the  suit  was 
issued. 

It  is  contended  in  the  next  place  that  the  verdict  and  judg- 
ment for  the  plaintiff  are  unsu[)ported  by  the  evidence,  because 
the  plaintiff  failed  to  deduce  his  title  from  the  United  States,  or 
any  other  original  source  of  title.  It  is  claimed,  on  the  other 
hand,  that  a  jirima  facie  title  is  shown,  by  deducing  title  from 
the  Johnston  heirs,  who  are  shown  to  have  been  in  ]>ossossion  of 
the  land,  claiming  title  in  fee.  The  plaintitF  also  sought  to 
bring  his  case  within  the  provisions  of  section  25  of  chapter  45 
of  the  Revised  Statutes.  Upon  the  trial  he  stated  on  oath  that 
he  claimed  title  from  the  Johnston  heirs,  and  that,  as  he  under- 
stood it,  the  defendant  claimed  title  from  the  same  source.  This, 
we  think,  was  sufficient  to  require  the  defendant,  or  its  agent  or 
attorney,  to  deny  on  oath  that  it  claimed  title  through  such 
source,  or  that  it  claimed  title  through  some  other  source,  in 
order  to  compel  the  plaintiff  to  deduce  title  from  any  other  than 
such  common  source.  No  such  denial  was  made  on  oath  by  or 
on  behalf  of  the  defendant,  and  we  think,  therefore,  it  was 
sufficient  prima  facie  for  him  to  trace  his  title  to  such  common 
source. 

The  principal  contention  on  the  part  of  the  defendant,  however, 
seems  to  be  that  the  Johnston  heirs,  at  the  time  the  village  of  Ran- 
kin was  laid  out  and  platted,  intended  to  dedicate,  and  in  fact  ded- 
icated, the  premises  in  question  to  the  railroad  company  of  which 
the  defendant  is  the  successor,  to  become  a  part  of  its  right  of 
way,  to  be  used  for  railroad  purposes.  It  seems  to  be  conceded 
that  the  strip  of  land  in  question  was  not  *'  marked  or  noted  on 
the  plat  as  donated  or  granted  "  to  the  railroad  company;  and  it 
is  not,  and  cannot  well  be,  claimed  that  the  plat  operated  as  a 
conveyance  thereof  to  the  railroad  company  under  the  provis- 
ions of  section  3  of  chapter  109  of  the  Revised  Statutes.  But  it 
is  insisted  that  the  plat,  when  considered  in  connection  with  the 
evidence  of  the  contemporaneous  and  subsequent  acts  and  con- 
duct of  the  parties,  tends  to  show  a  common  law  dedication  of 
the  land  to  the  company.  The  evidence  bearing  upon  the  ques- 
tion of  a  common  law  dedication  is  conflicting,  some  of  the 
witnesses,  especially  some  of  the  Johnston  heirs  themselves, 
testifying  positively  that  there  was  uo  intention  on  the  part  of  the 
heirs  to  make  such  dedication ;  but,  as  the  question  is  presented 
here,  we  need  consider  only  the  evidence  introduced  on  the  part 
of  the  defendant  to  show  such  dedication.  The  county  surveyor 
who  made  the  survey  and  plat  was  examined  as  a  witness,  and 


TWO    CONFLICTING    COMPLETE    DESCKIPTIONS    OF   PROPERTY.   675 

his  te&timony,  so  fur  as  it  relates  to  the  strip  taken  from  the 
land  belonging  to  the  Johnson  heirs,  boing  the  premises  in  con- 
troversy in  this  suit,  is  as  follows:  "I  was  county  surveyor  at 
the  time  the  village  of  Rankin  was  platted  and  laid  out.  I  made 
the  survey  and  plat.  I  lecollect  the  cireumstances  of  there 
being  a  strip  of  land  left  north  of  blocks  13  and  14  in  that  plat. 
There  was  a  strip  one  hundred  feet  wide  left  along  each  side  of 
the  center  of  the  road,  as  it  was  then  running.  In  making  that 
plat,  1  made  a  plat  of  the  whole  town.  That  strip  was  left  at 
the  time,  as  I  understood  it,  for  the  railroad  company.  I  think 
some  of  the  Johnston  heirs  were  assisting  in  making  the  ])lat. 
I  think  William  O.  Johnston  carried  chain  for  me.  The  strip 
has  been  used  for  railroad  grounds  ever  since,  so  far  as  I  know, 
I  have  been  back  there  since  that  time,  every  year  or  two  at 
different  times.  Mr,  Rankin  was  overseeing  and  looking  after 
the  platting  of  the  ground.  He  employed  me,  and  paid  me  for 
doing  the  whole  work.  He  was  with  me  during  the  platting. 
I  suppose  he  was  acting  for  the  Johnston  heirs,  in  the  platting 
of  the  ground.  He  was  there  all  the  time,  and  the  Johnston 
heirs,  or  some  of  them,  were  there  all  the  time,  while  I  was 
acting.  They  told  me  to  leave  a  hundred  feet  on  each  side  of 
the  track;  that  they  were  willing  to  give  almost  any  amount  of 
land  to  the  railroad  to  get  the  station  there.  And  I  did  so,  and 
that  was  made  and  signed  by  the  different  parties,  and  recorded. 
Why,  certainly,  it  was  left  for  railroad  ground,  and  that  was 
the  purpose  of  it.  I  do  not  remember  any  particular  conver- 
sation with  the  Johnston  heirs,  it  being  twenty-two  years  ago. 
They  were  all  mighty  anxious  to  get  the  town  there,  and  they 
were  fighting  the  town  a  mile  distant.  There  was  a  great  rivalry 
at  that  station,  and  the  station  a  mile  or  a  mile  and  a  half  west 
of  it,  for  the  town.  They  were  each  fighting  to  get  the  station. 
There  was  great  rivalry.  I  do  not  know  what  inducements 
they  had  offered,  but  they  were  willing  to  give  almost  anything 
to  the  railroad  to  locate  the  station  there.  They  were  willing  to 
give  this  ground,  and  anything  else."  Again  on  cross-examina- 
tion, he  said:  "I  don't  know  that  anything  was  said  by  the 
owners  as  to  what  use  the  land  was  to  be  put  to.  I  know  that 
it  was  not  left  for  the  owners  to  use  themselves.  I  know  it 
was  called  railroad  ground.  I  understood  by  that  that  it  was 
for  the  exclusive  use  of  the  railroad." 

The  evidence  shows  that  shortly  after  the  plat  was  recorded 
the  railroad  company  entered  into  possession  of  the  strip  of 
land  in  controversy,  and  built  a  side  track  and  also  erected 
stock  pens  upon  it,  and  that  it  and  its  successors  have  continued 
to  occupy  and  use  it  from  that  time  up  to  the  commencement  of 


«!7()       THK    KEQUISITES    AND    COMP.  )NENT    PARTS    OF    A    DEKD. 

this  suit,  —  a.  period  of  between  19  and  20  years,  —  claiming  it 
as  railroad  property.  It  also  appears  that  Iroin  the  time  the 
plat  was  recorded  the  Johnston  heirs  made  no  claim  to  this 
strip  of  hind,  until  a  short  time  before  the  commencement  of  this 
suit,  when,  for  a  nominal  consideration,  they  quitclaimed  their 
interest  to  the  plaintiff.  Upon  this  evidence  the  defendant's  coun- 
sel asked  the  court  to  give  to  the  jury  various  instructions  upon  the 
hypothesis  of  a  common-law  dedication,  but  the  court  refused  to 
give  any  instruction  of  that  character,  as  asked,  but  moditied 
them  so  as  to  limit  their  scope  to  a  dedication  by  plat;  thereby, 
in  effect,  refusing  to  instruct  the  jury  that  the  defendant  was 
capable  of  acquiring  lands  by  a  common-law  dedication.  Thus, 
the  following  instruction,  being  asked,  was  modified  by  inserting 
therein  the  words  in  italics,  and  given  thus  modified:  "The 
court  instructs  the  jury  that  a  railroad  corporation  is  a  public 
corporation,  and  is  an  ever-existing  grantee,  capable  of  taking 
lands  by  conveyance  or  by  dedication  by  pJat  by  the  owner  for 
railroad  purposes."  The  following  instruction  also  was  asked 
on  behalf  of  the  defendant:  "  The  court  instructs  the  jury  that 
the  word  •  dedication,'  used  in  these  instructions  means  an  ap- 
propriation or  devotion  or  setting  apart  by  the  former  owners  of' 
the  land  in  question  for  railroad  purposes.  A  dedication  of  land 
may  be  made  by  deed  or  writing,  or  it  may  be  by  acts  or  parol 
declarations  of  the  owners,  or  both,  without  writing;  and  no 
particular  form  is  required  to  establish  its  validity,  it  being 
purely  a  question  of  intention.  A  dedication  may  also  be  made 
by  survey  and  plat  alone,  without  any  declaration,  either  oral  or 
on  the  plat,  when  it  was  evident  from  the  face  of  the  plat  that  it 
was  intended  to  set  apart  certain  ground  for  the  use  of  the 
public  or  for  the  use  of  a  railroad  company."  This  instruc- 
tion the  court  refused  to  give  as  asked,  but  modified  it  as 
follows,  and  gave  it  to  the  jury  so  modified:  *' The  court 
instructs  the  jury  that  the  word  '  dedication,'  used  in  these 
instructions,  means  an  appropriation  or  devotion  or  setting 
apart  by  the  former  owners  of  the  land  in  question  for  railroad 
purposes  by  a  plat.  A  dedication  may  be  made  by  survey  and 
plat  alone,  without  any  declaration,  either  oral  or  on  the  plat, 
when  it  is  noted  on  the  face  of  the  plat  that  it  was  intended  to 
set  apart  certain  grounds  for  the  use  of  the  public,  or  for  the 
use  of  a  certain  corporation."  Other  instructions  involving  a 
similar  principle  were  modified  in  a  similar  manner.  The  rule 
which  the  trial  court  thus  intended  to  lay  down,  manifestly,  was 
that  while  a  railroad  company  may  take  lands  by  dedication, 
where  the  dedication  is  by  plat  executed  in  the  form  prescribed 
by  the  statute,  it  is  incapable  of  taking  lands  by  dedication  in 


TWO    CONFLICTING   COMPLETE    DESCRIPTIONS  OF    PROPERTY.    677 

any  other  way,  and  especially  that  it  cannot  become  the  bene- 
ficiary of  a  common-law  dedication.  That  there  was  evidence 
tending  to  show  a  common-law  dedication  to  the  railroad  com- 
pany, if  such  dedication  is  legally  possible,  cannot  be  doubted; 
and  the  question  presented  is  whether  the  court  decided  correctly 
in  holding  that  no  such  dedication  can  be  effectual,  as  vesting  a 
railroad  company  with  the  title  or  right  of  possession  of  the  land 
attempted  to  be  so  dedicated  to  its  use.  It  is  doubtless  true  that 
any  person  who  is  the  owner  of  land  may,  by  virtue  of  his 
absolute  dominion  over  it,  donate  or  dedicate  it  to  whomsoever 
he  pleases.  He  may  give  it  to  the  public,  to  a  body  corporate  cap- 
able of  holding  it,  or  to  a  natural  person,  for  such  purposes, 
either  public  or  private,  as  the  donor  sees  fit  to  appoint.  But  to 
render  such  gift  effectual  the  owner  must  grant  or  convey  to  the 
donee  the  land,  or  such  interest  therein  as  he  wishes  to  donate, 
either  by  deed,  or  by  some  equivalent  mode  of  conveyance 
known  to  the  law.  Except  in  what  are  known  as  "  common-law 
dedications,"  parol  gifts  of  land  or  of  easements  therein  are 
ineffectual ;  it  being  elementary  law  that  the  title  to  the  lands  can- 
not be  transmitted  inter  vivos  except  by  deed  or  its  equivalent, 
and  that  easements  or  other  incorporeal  hereditaments  cannot  be 
created  by  parol,  but  only  by  grant,  or  by  prescription,  whereby 
a  conclusive  presumption  of  a  previous  grant  is  raised.  The 
provisions  of  chapter  109  of  the  Revised  Statutes,  entitled, 
"  Plats,"  furnish  no  exception  to  this  rule.  They  merely  create 
a  new  mode  of  conveyance.  By  force  of  these  provisions  the 
owner  of  land,  by  platting  it,  and  marking  or  noting  on  the 
plat  that  portions  of  the  land  are  donated  or  granted  to  the  pub- 
lic, to  a  corporation,  to  a  religious  society,  or  to  a  natural  per- 
son, in  legal  effect,  conveys  the  portion  of  the  land  so  marked 
or  noted  to  the  designated  donee  or  grantee,  for  the  uses  and 
purposes  therein  indicated.  By  this  statute  the  purposes  for 
which  an  owner  of  land  may  dedicate  or  grant  it  away  to  others 
are  not  enlarged,  restricted,  or  modified,  but  a  new  mode  is  pro- 
vided, by  which  his  intention  to  grant  or  convey  his  land  may  be 
carried  into  effect.  But,  by  the  rules  applicable  to  what  is  known 
as  **  common-law  dedications,"  lands  or  easements  therein  may 
be  dedicated  to  the  public,  so  as  to  become  effectually  vested, 
without  the  aid  of  any  conveyance.  It  may  be  done  in  writing, 
by  parol,  by  acts  in  pais,  or  even  by  acquiescence  in  the  use  of 
the  easement  by  the  public.  All  that  is  necessary  is  that  the 
intention  to  dedicate  be  properly  and  clearly  manifested,  and 
that  there  be  an  acceptance  by  or  on  behalf  of  the  public.  When 
that  is  done  the  right  or  easement  becomes  instantly  vested  in 
the  public.     But  a  dedication  of  this  character,  to  be  effectual. 


678       THE     REQUISITES    AND    COMPONENT    TARTS    OF    A    DEED. 

must  be  to  the  public,  Washb.  Eiisera.  295.  At  the  common  hiw 
they  arc  contincd  to  the  puri)ose  of  highways,  but  in  this  country 
the  doctrine  has  a  wider  application,  :ind  its  limits  have  been 
judicially  defined  as  extending  to  public  squares,  common  lots, 
burying  grounds,  school  lots,  and  lots  for  school  purposes,  and 
pious  and  charitable  uses  generally,  and  in  many  causes  where 
the  use  was  either  expressly,  or  from  the  necessity  of  the  case, 
limited  to  a  small  portion  of  the  public.  5  Am.  &  Eng.  Enc. 
Law,  416,  and  authorities  cited  in  notes.  But  we  are  referred  to 
no  decision,  and  we  think  none  can  be  found,  where  a  dedica- 
tion of  this  character,  made  "  for  any  other  purpose  than 
one  strictly  public,  has  been  sustained.  Railroad  compa- 
nies, though  engaged  in  the  public  employment  of  common 
carriers,  are  essentially  private  corporations;  and,  while  the 
lands  composing  their  rights  of  way  are  acquired  for  a  public 
purpose,  the  ownership  of  such  lands,  when  acquired,  is 
private.  In  no  proper  sense  can  such  corporations  be  regarded 
as  constituting  the  public  or  a  portion  of  the  public  to  which 
common-law  dedications  of  land  can  be  made.  Donations  or 
gifts  of  land  can  undoubtedly  be  made  to  them  where  the  donor 
sees  fit  to  effectuate  his  gift  by  some  one  of  the  ordinary  modes 
of  conveyance,  and  the  donation  can  also  be  made  by  plat, 
where  the  donor  sees  fit  to  mark  or  note  on  his  plat  that  the 
land  which  he  wishes  to  give  to  'such  corporation  is  donated  or 
granted  to  it.  But  we  find  no  authority  in  the  law  for  holding 
that  a  railroad  corporation  may  acquire  title  to  or  an  easement 
in  land  by  common-law  dedication.  Neither  the  researches  of 
counsel  nor  our  own  have  brought  to  light  a  single  case  sustain- 
ing  such  dedication,  and  we  think  none  can  be  found.  Counsel 
seems  to  argue  that  because,  under  the  statute,  gifts  or  grants 
can  be  made  to  railroad  companies  and  other  corporations  by 
plat,  it  should  be  held  that  common-law  dedications  may  be 
made  in  like  cases.  This  by  no  means  follows.  As  we  have 
already  said,  the  statute  makes  the  plat  a  mode  of  conveyance; 
thus  enabling  the  donor  of  lands  to  accomplish  by  its  means  what, 
independently  of  the  statute,  he  might  have  done  by  any  other 
appropriate  conveyance.  But  it  in  no  way  enlarges,  either  ex- 
})res8ly  or  by  implication,  the  class  of  cases  where  an  easement 
may  be  created  in  favor  of  the  public  by  common-law  dedication. 
Moreover,  the  reasoning  sought  to  be  employed  would  prove  too 
much.  The  statute  makes  the  plat  a  conveyance,  not  only  to 
the  public  and  the  corjiorations,  but  also  to  natural  persons;  and 
the  same  principles  of  analogy  which  would  extend  the  doc- 
trine of  common-law  dedications  to  railroad  companies  would 
make  it  apply  as  well  to  natural  persons,  —  a  result  for  which. 


BOUNDARY  —  MONUMENTS SEASHORE  —  QUANTITY.  679 

we  thiuk  no  one  will  contend.  The  case  of  Morgan  v.  Railroad 
Co.,  96  U.  S.  716,  upon  which  much  reliance  seems  to  be  placed, 
will  be  found,  on  examination,  to  have  been  a  case  of  dedication 
or  conveyance  of  certain  lands  to  the  railroad  company  by  plat; 
and  the  question  of  a  common  law  dedication,  and  whether  such 
iledicalion  could  be  made  to  a  railroad  company  was  not  involved. 
That  case,  therefore,  cannot  be  regarded  as  an  authority  upon  the 
questions  presented  here.  It  should  also  be  noticed  that  the 
suit  was  in  equity,  —  a  forum  where  the  doctrine  of  equitable 
estoppel  has  full  play,  and  where  there  is  always  a  strong  indis- 
position to  enforce  stale  claims,  although  they  may  not  be  barred 
by  limitation, —  while  this  suit  is  in  ejectment,  where  legal  titles 
only  are  regarded.  The  case  of  Smith  v.  Town  of  Flora,  64 
111.  93,  to  which  we  are  referred,  involved  a  question  of  a  dedi- 
cation of  strips  of  land  on  each  side  of  the  right  of  way  of  the 
railway  company  to  the  municipal  corporation,  and  no  question 
of  common-law  dedication  to  a  railway  company  was  raised  or 
decided.  We  fail  to  find  in  the  record  any  substantial  error, 
and  the  judgment  of  the  circuit  court  will  accordingly  be  affirmed. 
Judgment  affirmed. 


Boundary  —  Moimments  —  Seasliore  —  Quantity. 

Oakes  v.  De  Lancey,  133  N.  Y.  227;  30  N.  E.  974. 

Appeal  from  superior  court  of  New  York  City,  general  term. 

Action  by  Thomas  F.  Oakes  against  Edward  F.  De  Lancey, 
to  recover  for  a  deficiency  in  the  quantity  of  land  sold  by  de- 
fendant to  plaintiff.  From  a  judgment  of  the  general  term 
(15  N.  Y.  Supp.  561),  affirming  a  judgment  for  defendant  at 
special  term  (14  N.  Y.  Supp.  294),  plaintiff  appeals.  Af- 
firmed. 

Finch,  J.  The  only  question  raised  by  this  appeal  is  over  the 
true  construction  of  the  deed  given  by  the  defendant.  The 
premises  were  described  as  "  Vergemere,"  and  bounded  on  the 
north  and  east  by  the  waters  of  Long  Island  sound;  and  the  dis- 
pute is  whether  the  description  of  the  conveyance  includes  or 
excludes  the  strip  of  land  on  the  water  fronts  between  high  and 
low  water,  and  which  constitutes  the  shore.  The  description 
is  thus  phrased  :  "  Beginning  at  a  point  in  the  center  line  of  an 
avenue  sixty  feet  wide,  know  as  '  De  Lancey  Avenue,'  which 
point  bears  south,  forty-two  degrees  and  forty-seven  minutes 
west,  thirty  feet  from  the  point  of  intersection  of  the 
division  line  between  the  property  hereby  conveyed  and  the 
land  conveyed  by  the  late  Peter  John  De  Lancey,  of  Geneva, 


680        THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

New  York,  to  Janiotj  J.  Burnett,  with  the  northeasterly  line  of 
said  De  Lancey  avenue  ;  and  thence,  running  along  said  division 
line,  north,  forty-two  degrees  and  forty-seven  minutes  east, 
about  eight  hundred  and  sixty-live  feet,  to  a  point  on  the  shore 
of  Long  Island  sound  ;  thence,  running  along  said  shore  and 
sound  as  the  same  bend  and  turn  easterly,  and  then  soutlierly, 
to  their  intersection  with  the  center  lino  of  De  Lancey  avenue 
aforesaid;  and  thence  running  along  said  center  line  of  said  De 
Lancey  avenue,  forty-nine  degrees  and  tifty-tive  minutes  west, 
about  twelve  hundred  and  eight3'-eight  feet,  to  the  point  or 
place  of  beginning;  containing  twenty-two  acres  and  fifty-seven 
hundredths  of  an  acre  of  land,  be  the  same  more  or  less."  It 
will  be  observed  that  the  starting-point  of  this  description  is 
fixed  with  accuracy  and  care  ;  and  the  surveys  show  that  the  first 
course,  if  run  in  obedience  to  the  distance  given,  will  extend  to 
low-water  mark  ;  and  that  the  last  course,  to  obey  the  same  re- 
quirement of  distance,  must  start  at  low-water  mark  on  the  east- 
erly water  front.  The  surveys  also  show  that  the  strip  between 
high  and  low  water  must  be  included  in  order  to  correspond  with 
the  quantity  of  land  which  the  deed  purports  to  convey.  The 
courses  and  distances  and  the  quantity  of  land  carry  the  descrip- 
tion to  low-water  mark,  and  can  only  be  satisfied  by  including 
the  area  of  the  shore.  But  the  appellant,  relying  upon  the  rule 
that  fixed  monuments  control,  and  distances  and  quantities  must 
yield  to  their  safer  and  superior  authority,  insists  that  the  shore 
is  such  a  monument,  and  by  the  shore  is  always  meant  the  line 
of  high  water  when  the  boundary  is  the  sea.  That  is  undoubt- 
edly true,  and  would  be  decisive  if  the  first  course  ran  simply  to 
the  shore."  But  it  does  not.  It  goes,  nf>t  to  the  shore,  but  "  to 
a  point  on  the  shore."  That  point  may  be  anywhere  upon  the 
strip  lying  between  high  and  low  water,  and  where  it  is  must  be 
determined,  and  can  only  be  determined,  by  the  sole  direction 
furnished,  which  is  the  distance.  That  distance  fixes  the  point 
at  the  outer  or  low-water  line  of  the  shore,  and  so,  and  only  so, 
is  the  description  satisfied.  The  first  course  ends  at  "  a  point  on 
the  shore,"  and  about  865  feet  from  the  fixed  starting-point. 
Having  found  this  "  point  on  the  shore,"  we  are  required  to  go 
"along  said  shore  and  sound"  easterly,  and  then  southerly. 
Starting  thus  on  the  line  of  low  water,  we  must  follow  that  line. 
The  words  are  not  only  *'  along  the  shore,"  but  also  "  along  the 
sound,"  and  a  line  starting  at  low  water,  and  then  running  away 
from  it  on  a  diagonal  to  the  line  of  high  water,  and  thence  east- 
wardly  on  that  line,  is  neither  described  nor  intended.  It  would 
fail  again  when  the  return  course  to  the  starting-point  is  reached. 
That  calls  for  about    1,288   feet,  and  can   only  be  satisfied  by 


LOST   CORNERS    IN    LOCATION    OF    BOUNDARY   LINES.  681 

beginning  the  course  at  low-water  mark.  To  these  indications 
of  the  intent  must  be  added  the  quantity  of  land  stated  to  be 
conveyed,  which  requires  the  inclusion  of  the  shore,  and  is 
seriously  defective  if  that  be  excluded.  The  use  of  the  words 
"  more  or  less,"  in  connection  with  the  quantity,  and  the  use  of 
the  word  "about,"  as  qualifyiitg  the  distance,  do  not  alter  the 
conclusion  to  be  drawn.  They  are  words  of  safety  and  precau- 
tion, and  intended  to  cover  some  slight  or  unimportant  inac- 
curacy, and  while  enabling  an  adjustment  to  the  imperative 
demands  of  fixed  mouuiiTeiits,  do  not  weaken  or  destroy  the 
indications  of  distance  and  quantity,  when  no  other  guides  are 
furnished.  Belknap  v.  Sealey,  14  N.  Y.  143.  The  appellant 
further  insists  that  the  title  to  the  shore  is  presumably  in  the 
State.  That,  with  us,  is  the  common-law  rule,  but  does  not 
exclude  the  possibib'ty  of  title  in  the  grantor  derived  from  the 
sovereign  or  obtained  by  prescription.  There  is  no  question  of 
title  in  the  case,  and  we  know  nothing  about  it.  Certainly  we 
ought  not  to  presume  a  want  of  title  in  the  grantor  in  order  to 
construe  a  description  which  implies  such  title.  There  is  noth- 
ing in  the  case  of  Storer  v.  Freeman,  6  Mass.  435,  upon  which 
the  appellant  mainly  relies,  adverse  to  our  conclusion.  In  that 
case  the  description  in  the  first  deed  ran  "  to  the  shore,"  which 
was  held  to  be  the  line  of  high  water.  In  the  second  deed  the 
course  ended  at  a  heap  of  stones  "  at  the  shore,"  and  ran  thence 
"  by  the  shore."  That  heap  of  stones  at  "  William  Elwell's 
corner  "  was  treated  as  a  possible  monument  which,  if  found  at 
the  line  of  low  water,  would  carry  the  description  there,  and 
thence,  *'  by  the  shore,"  would  follow  the  line  of  low  water. 
The  point  on  the  shore,  or  at  the  shore,  fixed  in  that  case  at  low 
water  by  a  monument  in  the  form  of  a  heap  of  stones  at  a  cor- 
ner, is  fixed  here  without  a  monument,  by  the  sole  remaining 
guides,  which  are  distance  and  quantity,  at  a  point  on  the  shore 
at  low-water  mark.  We  think  the  judgment  is  right,  and  should 
be  affirmed,  with  costs.     All  concur. 


Ascertainment    of    Lost  Corners  in  Liocation    of    Boundary 

Lines. 

Miller  v.  Topeka  Land  Co.,  44  Kan.  355;  24  P.  420. 

HoRTON,  C.  J.  The  Topeka  Land  Company  brought  its 
action  against  F.  O.  and  G.  F.  Miller,  to  quiet  its  title  to  a  strip 
or  tract  of  land  in  the  N.  E.  1-4  of  section  2,  township  12, 
range  15,  in  Shawnee  County,  described   as    follows:    "Com- 


,682       THE    REQUISITES    AND    COMPONENT    PARTS    OF   A    DEED. 

raencing  1,323.08  feet  nortb  of  southeast  corner  of  said  quarter 
section;  thence  riuniin*;  west  forty  chains,  or  thereabouts,  to 
the  west  line  of  said  quarter  section,  at  a  point  1,325.33  north 
of  the  southwest  corner  of  said  quarter  section  ;  thence  south  33 
feet;  thence  east  forty  chains,  or  thereabouts,  to  the  east  lino  of 
said  qnarter  section  ;  thence  north  23  feet  to  place  of  be<^in- 
ning."  Trial  had  by  the  court,  Hon,  Z.  T.  Hazen  acting  as 
judge  pro  tern.  The  court,  after  hearing  the  evidence  and  argu- 
ments of  counsel,  found  the  allegations  in  the  plaintiff's  petition 
to  bo  true,  and  made  a  general  finding  in  favor  of  the  plaintiff. 
The  court  subsequently,  upon  its  general  finding,  rendered 
judgment  in  favor  of  the  plaintiff  and  against  the  defendants, 
forever  quieting  the  title  in  the  plaintiff  to  the  land  in 
controversy  as  against  the  defendants,  and  all  persons 
claiming  under  or  through  them,  or  either  of  them.  The  de- 
fendants bring  the  case  here.  The  principal  complaint  is  that 
the  judgment  of  the  trial  court  is  not  sustained  by  sufficient 
evidence.  The  record  does  not  show  any  exception  to  the  evi- 
dence given,  nor  does  it  show  any  evidence  was  excluded.  The 
case  made  does  not  state  expressly,  or  by  implication,  that  it 
contains  all  of  the  evidence  introduced  upon  the  trial.  The  cer- 
tificate of  the  judge  clearly  implies  that  all  of  the  evidence  is 
not  embraced  in  the  record.  As  the  judgment  follows  the 
petition,  the  only  matter  for  our  consideration  is  whether  the 
allegations  of  the  petition  are  suflacient  to  entitle  the  land  com- 
pany to  the  judgment  rendered. 

The  petition  alleges,  among  other  things,  that  on  the  2d  day 
of  April,  1860,  the  United  States  conveyed  by  its  patent,  to 
Lewis  C.  Wilmarth,  "  the  northeast  quarter  of  the  northeast 
quarter  of  section  two  (2),  in  township  twelve  (12),  of  range 
fifteen  (15),  in  the  district  of  lands  subject  to  sale  at  Lecompton, 
Kan.,  containing  thirty-eight  acres  and  twenty-seven  hundredths 
of  an  acre,  according  to  the  official  plat  of  the  survey  of  said 
lands  returned  to  the  General  Land  Office  by  the  surveyor-gen- 
eral ;  "  that  on  the  1st  day  of  June,  1860,  the  United  States  also 
conveyed  by  its  patent,  to  Lewis  C.  Wilmarth,  "  the  south  half 
of  the  northeast  quarter,  and  the  northwest  quarter  of  the  north- 
east quarter  of  section  two  (2),  in  township  twelve  (12), 
range  fifteen  (15),  in  the  district  of  lands  subject  to  sale  at 
Lecompton,  Kan.,  containing  one  hundred  and  eighteen  acres 
and  fifty-two  hundredths  of  an  acre,  according  to  the  official  plat 
of  the  survey  of  the  said  land  returned  to  the  General  Land  Office 
by  the  surveyor-general,"  which  patent  is  duly  recorded  in  the 
office  of  the  register  of  deeds  of  Shawnee  County,  at  page  289, 
vol.  13;   that  according  to  the  official  plat  of  the  survey  of  said 


LOST    CORNERS    IN    LOCATION    OF    BOUNDARY    LINES.  683 

land,  returned  to  the  General  Land  Office  of  the  United  States  by 
the  surveyor  general,  the  widtli  of  the  south  h;df  of  siiid  quarter 
section  was  twenty  chains  on  its  east  and  west  lines;  thtit  the 
east  Hue  of  said  northeast  quarter  of  said  quarter  section  was 
19.07  chains;  that  tlie  length  of  the  west  hue  of  the  said  north- 
east quarter  of  said  quarter  section  was  19.13  chains;  tliat  the 
length  of  the  west  line  of  the  said  northwest  quarter  of  Siiid 
quarter  section  was  19.19  chains;  that  the  real  length  of  the 
entire  east  line  of  the  said  quarter  section  is  39.20  chains  and 
not  merely  the  total  of  the  official  measurements,  which  are 
39.07  chains;  that  the  actual  and  real  length  of  the  entire  west 
line  of  the  said  quarter  section  is  39.43  chains,  and  not  merely 
the  total  of  said  official  measurements,  which  are  39.19  chains; 
and  that  there  are  no  monuments  upon  the  land  of  the  govern- 
ment survey  of  the  line  between  the  north  half  of  said  quarter 
section  and  the  south  half  thereof;  that  on  the  24th  of  May, 
1880,  Lewis  C.  Wiluiarth  and  wife  executed  and  delivered  to  the 
Topeka  Land  Company  a  conveyance  of  a  certain  portion  of 
said  land,  described  as  follows:  "The  south  half  of  the  north- 
east quarter  of  section  two  (2),  in  township  twelve  (12),  range 
fifteen  (15),  in  the  district  lands  sulgect  to  sale  at  Lecompton, 
Kan.,  as  described  in  government  patents  issued  to  the  p-arties 
of  the  first  part  April  2d  and  June  1st,  1860,  and  duly  recorded 
in  volume  13,  pp.  289,  290,  Shawnee  County  records;  "  that  on 
the  same  day,  the  24lh  of  May,  1880,  Lewis  C.  VVilmarth  and 
wife,  executed  and  delivered  to  F.  O.  Miller  a  conveyance  of  a 
certain  portion  of  said  land,  descrii)ed  as  follows;  The  north 
half  of  the  northeast  quarter  of  section  two  (2),  in  township 
twelve  (12),  range  fifteen  (15),  in  the  district  of  lands  sui)ject 
to  sale  at  Lecompton,  Kan.,  as  described  in  government  patents 
issued  to  the  parties  of  tlie  first  part  April  2d  and  June  1st,  1860, 
and  duly  recorded  in  volume  13,  pp.  289,  290,  in  Shawnee 
County  records  ;  "  that  said  defendants  have  not,  nor  has  either 
of  tliem,  any  right,  title,  or  interest  in  or  to  any  of  said  lands 
hereinbefore  described,  save  and  except  under  and  by  virtue  of 
said  deed  of  said  Lewis  C.  Wilmarth  and  wife;  that  the  plaintiff 
is  the  owner  and  in  the  actual  possession  of  the  strip  or  tract  of 
land  heretofore  described  as  thirty-three  feet  wide  from  north 
to  south,  and  forty  chains  long  from  east  to  west. 

Upon  the  allegations  in  the  petition,  the  judgment  of  the  dis- 
trict court  must  he  sustained.  In  the  deeds  of  Wilmarth  to  the 
parties  to  this  action,  the  reference  to  the  government  patents 
made  the  description  and  the  United  States  survey  a  part  of  the 
deeds.  Tied.  Real  Prop.,  §  481,  and  cases  cited;  Davidson  v. 
Arledge,  88  N.  C.  326;  Powers  v.  Jackson,  50  Cal.  429;   Tar- 


684       THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

penning  v.  Cannon,  28  Kan.  GG5.  According  to  the  govern- 
ment survey  the  entire  length  of  the  east  line  of  the  whole 
quarter  section  was  39.07  chains,  of  which  the  east  line  of 
the  south  half  of  the  quarter  section,  as  measured  by  the  gov- 
ernment survey,  was  20  chains  long,  and  the  north  half 
19.07  chains.  The  length  by  accurate  measurement  of  the 
entire  east  line  of  the  quarter  section  is  39.20  chains,  being 
.13  chains  more  than  the  survey  as  made  by  the  government 
surveyors.  The  plaintiff  below,  under  its  petition,  is  entitled 
to  its  proportionate  share  of  the  .13  of  a  chain.  ♦'  Where, 
on  a  line  of  the  same  survey,  between  remote  corners,  the 
whole  length  of  which  line  is  found  to  be  variant  from  the 
length  called  for,  *  *  *  we  are  not  permitted  to  presume 
merely  that  a  variance  arose  from  defective  survey  in  any  part, 
but  we  must  conclude,  in  the  absence  of  circumstances  showing 
the  contrary,  that  it  arose  from  the  imperfect  measurement  of 
the  whole  line,  and  distribute  such  variance  between  the  sev- 
eral subdivisions  of  such  line  in  proportion  to  their  respective 
lengths."  Morehind  V.  Page,  2  Iowa,  139  ;  Mc Alpine  v.  Reich- 
eneker,  27  Kan.  257;  Nevvcomb  v.  Lewis,  31  Iowa,  488-490 ; 
O'Brien  v.  McGrane,  27  Wis.  446;  Jones  y.  Kimble,  19  Wis. 
430-432.  Again,  the  petition  alleges  that  the  plaintiff  is  the 
owner  of  and  in  the  actual  possession  of  the  strip  or  tract  of 
land  in  dispute.  In  the  absence  of  evidence,  we  must  assume 
that  the  trial  court  had  evidence  before  it  to  justify  its  finding, 
and  therefore  properly  rendered  judgment  accordingly.  The 
judgment  of  the  district  court  will  be  affirmed.  All  the  justices 
concurring. 


Description   in  a  Conveyance  of  a  Cotenant's  Undivided  In- 
terest in  a  Joint  Estate. 

Emeric  v.  Alvarado,  90  Cal.  444;  27  P.  356. 

McFarland,  J.  This  is  an  action  for  the  partition  of  a  tract 
of  land  called  the  "  San  Pablo  Ranch,"  containing  17,938.59 
acres.  It  is  situated  in  what  in  now  Contra  Costa  County,  and 
was  granted  by  the  Mexican  government,  and  afterwards  patented 
by  the  United  States  to  the  successors  of  Francisco  Maria 
Castro,  who  died  on  the  5th  day  of  November,  1831.  The 
action  was  commenced  on  November  19,  1867,  in  the  district 
court  of  the  fifteenth  judicial  district  in  and  for  the  city  and 
county  of  San  Francisco,  and  an  interlocutory  decree  was 
rendered  in  that  court  on  July  15,  1878.  Several  appeals  were 
taken,  and  the  judgment  and  order  denying  a  new  trial  were 
reversed  by  this  court,  because  the  findings  as  to  two  or  three 


DESCRIPTION    OF    COTENANT's    UNDIVIDED    INTEREST.  685 

issues  were  deemed  defective;  and  fuiLhermore,  and  mainly, 
because  the  decree  determined  rights,  interests,  and  shares  in  the 
land  only  as  they  existed  in  the  hands  of  the  original  tenants  in 
common,  and  did  not  determine  the  present  rights,  interests  and 
sliaros  of  all  the  jjarties  to  the  suit  as  they  existed  at  the  time 
the  action  was  commenced.  Most  of  the  findings  of  the  district 
court  were  ap[)roved,  and  the  cause  was  remanded  to  the  supeiior 
couit  (successor  to  said  district  court),  with  instructions  to  find 
on  certain  issues  mentioned;  and  "  upon  the  findings  hereto- 
fore made  and  herein  approved,  and  those  hereafter  to  be  made 
under  the  directions  of  this  court,"  to  proceed  and  specify  in  its 
interlocutory  decree  the  "  rights  and  interests  of  all  parties  to  the 
action,"  and  adjudge  partition  between  them  according  to  such 
rights  and  interests.  Emeric  v.  Alvarado,  64  Cal.  527;  2  Pac. 
Rep.  418.  It  was  established  by  the  first  decree,  and  the  de- 
cision of  this  court,  that  the  persons  denominated  "  original 
tenants  in  common,"  and  the  shares  belonging  to  each,  were  as 
follows:  Martina  Castro  de  Alvarado,  fifteen  equal  twenty- 
second  parts  of  said  rancho;  Antonio  Castro,  Joaquin  I.Castro, 
Juan  Jose  Castro,  Gabriel  V.  Castro,  Victor  Castro,  and  Jesus 
M;»ria  Castro,  each  one  equal  twenty-second  part;  and  Luisa 
Moraga  de  Briones,  Maria  de  los  Angeles  Moraga  de  Briones, 
Jose  Moraga,  Gaudalupe  Moraga  de  Martinez,  and  Francisca 
Moraga,  each  one  equal  one-fifih  of  one  equal  twenty-second  part 
of  said  rancho.  (The  seven  persons  first  above  named  were 
children  of  Francisco  Maria  Castro,  and  tlie  five  persons  last 
named  were  children  of  Francisco  Castro  de  Moragi,  a  deceased 
daughter  of  said  Francisco  Maria  Castro.  )  After  the  cause  went 
back  to  the  superior  court,  further  fin<lings  were  had;  and  that 
court  — Judge  James  G.  Maguire  presiding  — with  great  care,  and 
in  a  systematic  method  that  must  have  cost  great  labor  and 
thought,  found,  determined,  and  stated  the  interests  and  shares, 
not  only  of  the  said  original  codefendants,  but  of  all  persons 
holding  or  claiming  under  them, and  being  parties  to  this  action  ; 
and  entered  an  interlocutory  decree  adjudging  partition  among 
the  parties  in  accordance  with  the  findings.  The  case  now 
comes  here  the  second  time  upon  numerous  appeals  from  the 
interlocutory  decree,  and  from  an  order  denying  a  motion  for  a 
new  trial.  There  are  several  hundred  parties  to  the  action. 
The  interests  of  many  of  the  parties  to  the  appeals  are  friendly 
as  to  some  matters  and  hostile  as  to  others,  so  that  they  are 
appellants  as  to  some  points  and  respondents  as  to  others,  thus 
presenting  different  and  contradictory  claims  upon  the  same 
transcript.  The  findings  of  fact  of  the  superior  court  number 
274,  many    of   them    having  numerous  subdivisions,  and    they 


()8()      THE    REQUISITES    AND    C0MP0N?:NT    PARTS    OF   A    DEED. 

were  all  necessary  to  the  disposition  of  the  case.  Those  find- 
ings, with  the  conclusions  of  law,  the  original  findings  of  the 
district  court,  and  the  last  interlocutory  decree  occupy  752 
pages  of  the  printed  transcript  No.  13, 27(5,  while  there  is  much 
additional  matter  in  the  other  traascri[)ts.  It  is  apparent  there- 
fore, that  the  labor  of  the  court  below  must  have  been  very 
great;  and  that  it  would  be  impossible  to  give  here  a  full  state- 
ment of  the  whole  case  in  detail  without  exceeding  all  reason- 
able limits  of  an  ojiinion.  As,  however,  the  oi)inion  of  this 
court  delivered  on  the  former  appeal  contains  (juite  an  extensive 
history  of  the  case,  and  as  the  points  arising  on  the  present 
appeals  may  be  grouped  into  a  few  general  classes,  we  think 
that  the  case  can  be  di^^posed  of  without  much  detailed  statement 
of  facts.  There  are  five  separate  transcri})ts,  —  Nos.  13,276, 
13,275,13,871,  13,984,  and  14,006.  In  the  present  opinion, 
rendered  in  No.  13,276,  we  will  consider  and  determine  all  the 
points  made  in  all  the  appeals,  and  judgments  will  be  rendered 
in  the  api)eals  based  upon  the  other  transcri[)ts  according  to  the 
conclusions  declared  in  this  opinion.  (The  reference  here  made 
to  the  transcript  refer  to  transcript  13,276,  unless  otherwise 
stated.) 

I.  Specific  Tracts.  At  various  times  individual  tenants  in 
common,  owning  large  undivided  interests  in  the  ranch,  under- 
took by  grant,  bargain,  and  sale  deeds  to  convey  the  whole  of 
particular  parts  of  the  ranch  described  by  metes  and  bounds,  or 
other  sufficient  descriptions  as  though  the  grantor  owned  in  sev- 
eralty the  particular  part  conveyed.  The  lands  described  in  these 
conveyances  are  called  "  specific  tracts."  There  are  more  than 
a  hundred  of  such  tracts,  and  they  are  designated  in  the  findings 
by  numbers.  The  court  below  found  that  these  specific  tracts, 
conveyed  by  deeds  purporting  to  convey  the  whole  title, 
"  should  be  allotted  and  set  apart  in  partition  as  a  portion  of 
the  shares  and  interest  of  such  cotenants,  and  in  such  manner 
as  to  make  such  deeds  effectual  as  conveyances  of  the  whole  title 
to  such  segregated  parcels,  if  the  same  can  be  done  without 
material  injury  to  the  rights  and  interests  of  other  cotenants 
who  did  not  join  in  such  conveyances,  or  those  claiming  under 
such  other  cotenants,  or  any  of  them  ;  and  the  tracts  so 
conveyed  are  to  be  chaiged  in  proportion  to  their  value  to 
the  interest  in  said  rancho  of  the  said  grantors."  This  find- 
ing  is  attacked  as  erroneous  by  some  of  the  appellants,  who 
contend  —  First,  thsit  such  a  conveyance  is  void;  and  second, 
that,  if  not  void,  the  grantee  under  it  of  a  specific  tract  should 
take,  on  partition,  only  such  a  share  as  is  equal  to  the  undivided 
interest  which  the  granting  cotenant  had  in  such  specific  tract. 


DESCRIPTION    OF    A    COTENANT'S    UNDIVIDED    INTEREST.      687 

Upon  this  subject  it  is  declared  in  section  764  of  the  Code  of 
Civil  Procedure  as  follows:  "  Whenever  it  shall  appear,  in  an 
action  lor  partition  of  lauds,  that  one  or  more  of  the  tenants  in 
common,  being  the  owner  of  an  undivided  interest  in  the  tract 
of  land  sought  to  be  partitioned,  has  sold  to  another  person  a 
specific  tract  by  metes  and  bounds  out  of  the  common  land,  and 
executed  to  the  })urchaser  a  deed  of  conveyance  purporting  to 
convey  the  whole  title  to  such  specific  tract  to  the  purchaser  in 
fee-simple  and  in  severalty,  the  land  described  in  such  deed  shall 
be  allotted  and  set  apart  in  partition  to  such  purchaser,  his  heirs 
and  assigns,  or  in  such  other  manner  as  shall  make  such  deed 
effectual  as  a  convevance  of  the  whole  title  to  such  segregated 
parcel,  if  such  tract  or  tracts  of  land  can  be  so  allotted  or  set 
apart  without  material  injury  to  the  rights  and  interests  of  the 
other  coteuauts  who  may  not  have  joined  in  such  conveyance." 
If  this  section  of  the  Code  controls  in  the  case  at  bar,  then  the 
question  under  discussion  must  be  answered  adversely  to  the  con- 
tention of  appellants.  But  the  part  of  the  section  above  quoted 
was  not  enacted  until  1876  ;  and,  as  the  conveyances  here  involved 
were  made  prior  to  that  time,  it  is  contended  by  appellants  that 
the  said  provision  of  the  Code  is  not  applicable  to  this  case. 
Of  course,  if  this  amendment  to  the  section  was  an  entirely 
new  provision,  and  completely  changed  the  old  law  upon  the 
subject,  it  would  not  be  retroactive,  and  could  not  destroy  or 
seriously  disturb  prior  vested  rights.  But,  in  our  opinion,  the 
law  was  substantially  the  same  before  the  amendment  as  after 
it.  From  a  general  statutory  enactment  not  expressing  a  design 
to  change  the  law  there  arises  no  necessary  presumption  that  the 
law  was  different  before  the  enactment.  It  was  said  at  a  very 
early  date  in  the  history  of  our  jurisprudence  that  "  to  know 
what  the  common  law  was  before  the  making  of  a  statute, 
whereby  it  may  be  known  whether  the  statute  be  introductory 
of  a  new  law  or  only  affirmatory  of  the  common  law,  is  the  very 
lock  and  key  to  set  open  the  windows  of  a  statute,"  and  that 
"  in  all  general  matters  the  law  presumes  the  act  did  not  intend 
to  make  any  alteration."  These  rules  were  approved  by  our 
predecessors,  the  learned  Justice  Field  delivering  the  opinion  of 
the  court,  in  Baker  v.  Baker,  13  Cal.  95,  96.  Statutes  are  fre- 
quently intended  to  remove  all  doubt  and  uncertainty  as  to  some 
principle  of  law,  and  to  state,  in  apt,  distinct,  and  explicit  lan- 
guage, what  the  law  is  upon  a  particular  subject  ;  and  we  think 
that  such  was  the  effect  of  the  amendment  which  we  are  now 
considering.  In  the  same  amendment  it  was  also  enacted,  for 
the  first  time,  that,  when  a  co-tenant  had  made  improvements  on 
a  part  of  the  common  land,  that  part  should  be  allotted  to  him, 


G88        THE    REQUISITES    AND    COMPONENT    PAllTS    OF    A    DEED. 

on  partition,  without  considering  tlio  value  of  such  iu)i;r(>ve- 
ments,  if  the  same  could  bo  done  without  niateiial  injury  to  the 
other  cotenants  ;  but  it  is  not  contended  that  such  was  not  the 
law  before  the  atnendment.  In  Scale  v.  Soto,  35  Cal.  102  (de- 
cided in  18(J8),  the  lower  court  had  orilered  in  its  interlocutory 
decree  "  that  there  beset  off  to  the  said  several  parties  such  por- 
tions of  said  premises  as  will  include  their  respective  improve- 
ments, provided,  always,  that  the  rights  or  interests  of  neither  of 
the  other  parties  be  prejudiced  thereby  ;"  and  this  court  held, 
on  a[)peal,  that  the  order  was  "equitable,  just,  and  proper," 
and  "  cannot  be  successfully  assailed." 

The  decision  of  this  court  on  the  former  appeal,  if  not  declar- 
ing, as  the  law  of  the  case,  that  the  rule  laid  down  in  section 
764  should  govern,  is  at  least  strong  authority  to  that  point. 
Mr.  Justice  Thornton,  who  delivered  the  leading  opinion  in  the 
case,  when  giving  reasons  for  the  proposition  that  an  interlocu- 
tory decree  should  determine  the  rights  of  all  the  parties,  urges, 
as  an  argument,  the  consideration  that  otherwise  the  provisions 
of  section  764  could  not  be  carried  out.  He  quotes  the  section 
in  full,  and  says:  "  We  cannot  see  how  these  provisions  can  be 
carried  out  by  the  referees  unless  the  interest  of  each  party 
is  ascertained  by  the  court  and  stated  specifically  in  the 
decree.  And  when  the  decree  for  partition  is  made,  as  it  is 
in  this  case,  the  court  must  determine  under  which  of  the 
original  cotenants  each  [)arty  claims,  and  state  it  in  the 
decree,  so  that  the  referees  can  perceive  clearly  and  be 
enabled  to  execute  the  provisions  in  section  764  when  in- 
serted in  the  decree."  None  of  the  other  justices  dis- 
sent from  this  part  of  the  opinion,  although  Mr.  Justice  Ross 
holds  that  it  was  sufficient,  in  the  first  instance,  to  determine  the 
shares  and  interests  of  the  original  cotenants.  The  concurring 
opinion  of  Mr.  Justice  McKee  merely  fortifies  the  opinion  of 
Justice  Thornton  as  to  the  proper  character  of  the  interlocutory 
decree,  and  says,  among  other  things,  as  follows:  "The  next 
step  in  order  is  to  ascertain  and  determine  the  respective  rights 
and  interest  of  each  of  the  tenants  in  common  in  the  mode  pre- 
scribed by  sections  763,  765,  and  769  of  the  Code  of  Civil  Pro- 
cedure, and  adjudge  partition  between  them  according  to  their 
respective  rights."  Moreover,  in  the  findings  of  the  district 
court,  which  were  then  under  the  review  of  this  court, 
there  was  a  finding  on  the  subject  of  specific  tracts  to  the 
precise  effect,  and  in  the  identical  language,  of  the  finding  of  the 
superior  court  which  we  are  now  considering,  and  the  superior 
court  was  directed  to  "  proceed  upon  the  findings  heretofore 
made  and  herein   approved."     Therefore,  whether   or  not  the 


t)E8CRIPTION    OF    A    COTENANT*S    UNDIVIDED    INTEREST.       089 

decision  can  be  taken  as  a  direct  adjudication  of  this  point,  it  is 
evident  that,  in  the  judgment  of  the  court  at  that  time,  the  true 
rule  on  the  subject  is  that  declared  in  section  764.  And  we  are 
satisfied,  upon  principle  and  authority,  that  such  is  the  correct 
rule. 

It  is  clear  that  a  deed  made  by  one  cotenant  conveying  a 
specific  part  of  the  land  of  the  cotenancy  is  not  void.  That 
was  definitely  settled  in  Stark  v,  Barrett,  15  Cal.  362.  In  that 
case  one  of  the  cotenants  (Vaca)  had  undertaken  to  convey 
all  his  right,  title,  and  interest  in  and  to  a  tract  containing 
1,500  acres,  being  a  part  of  the  common  land;  and  it  was 
argued,  and  authorities  cited  to  the  point,  that  the  conveyance 
was  void  because  it  destroyed  the  unity  of  possession,  because 
it  impaired  the  right  of  the  other  cotenants  to  partition,  and 
imposed  additional  burdens  on  them  when  seeking  partition,  etc. 
But  the  court,  after  reviewing  the  authorities,  held  definitely 
that  such  a  conveyance  was  not  void,  although,  as  against  the 
other  cotenants,  the  grantee  might  lose  his  rights  on  partition. 
And,  of  course,  where,  as  in  the  case  at  bar,  a  cotenant  under- 
takes to  convey  the  whole  title  to  a  specific  tract,  his  conveyance, 
under  well-settled  principles,  operates  as  an  alienation  of,  at 
least,  all  the  right  and  interest  which  the  grantor  had  in  the 
specific  tract;  so  that  he  comes  within  the  rule  that  his  convey- 
ance is  not  void,  as  established  in  Stark  v.  Barrett,  Freem.  Co- 
Tenancy,  §  204  et  seq.  Furthermore,  when  a  cotenant  under- 
takes by  a  bargain  and  sale  deed  to  grant  a  specific  tract  in 
severalty,  although  his  deed  will  not  convey  the  interest  of  his 
cotenants,  he  is  estopped  under  well-settled  rules  from  denying, 
as  against  his  grantee,  that  he  owned  a  less  interest  than  his  deed 
purports  to  convey.  And,  under  equally  well-settled  rules,  if  he 
afterwards  acquires  the  title  of  his  cotenants  in  the  specific  tract, 
such  title  will  inure  to  the  benefit  of  his  grantee;  and  if,  upon 
partition,  such  specific  tract  be  allotted  to  him,  then  it  happens 
that  he  does  acquire  his  cotenants'  title,  and  it  passes  to  his 
grantee.  But  a  suit  in  partition  under  our  Code  is,  in  its  nature 
and  essence,  equitable  (Emeric  v.  Alvarado,  64  Cal.  619;  2  Pac. 
Rep.  418  ;  Gates  v.  Salmon,  35  Cal.  593),  and  the  court  in  its 
decree  proceeding  to  do  what  is  "  equitable,  just  and  proper  " 
will  not  only  allot  to  a  cotenant  that  part  of  the  common  land 
upon  which  he  has  valuable  improvements,  but  will  also  set  apart 
a  specific  tract  to  the  share  of  a  copartner  who  has  undertaken 
to  convey  the  title  in  fee  to  such  tract  in  severalty,  so  that  the 
grantee  may  have  that  which  is  justly  his,  when  such  disposition 
of  the  land  can  be  made  "  without  material  injury  to  the  rights 
and  interests  of  the  other  cotenants."     See  1   Story  Eq.  Jur. 

44 


<U)0       THE    REQUISITES    AND    (COMPONENT    TAIiTS    OF    A    DEED. 

§  656c;  Frccm.  Co-Tenancy,  §§  202-205;  McKee  v.  Bailey,  11 
Giat.  340;  Canipau  v.  Godfrey,  18  Mich.  27;  Holcomb  v. 
Coryell,   11  N.  J.  Eq.  548  ;  Nichols  v.  Smith,  22  Pick.  319. 

There  aio  no  decisions  in  this  State  which  assert  a  ditterent 
rule.  Gates  v.  Salmon  (reported  in  35  and  also  in  46  Cal.)  is 
cited  on  both  sides.  In  the  case  as  reported  in  35  Cal.,  the 
only  point  decided  is  that,  in  a  suit  for  i)artition,  grantees  of 
specific  tracts  are  necessary  parties  to  the  action;  and  the  views 
expressed  in  the  opinion  on  the  general  subject  are  in  harmony 
with  the  conclusion  above  stated.  In  the  case  as  reported  in  46 
Cal.,  it  is  stated  that  the  grantees  of  specific  tracts,  under  cer- 
tain deeds,  acquired  the  interests  which  their  grantors  had 
at  the  time  of  the  execution  of  the  deeds  ;  but  the  character  of 
such  deeds  does  not  appear,  nor  in  the  confused  state 
of  the  pleadings  and  issues  and  parties  in  that  case,  does  it 
appear  against  whom  the  statement  is  intended  to  apply,  or 
between  what  parties  the  question  was  raised.  Of  course,  one 
tenant  in  common  cannot,  as  against  his  cotenants,  absolutely 
convey  away  the  interests  of  the  latter  in  any  part  of  the  com- 
mon land.  In  Pfeiffer  v.  Regents,  74  Cal.  156;  15  Pac.  Rep. 
622,  a  tenant  in  common  had  undertaken  to  grant  to  a  stranger 
the  right  to  perpetually  divert  water  from  the  common  land 
upon  the  several  land  of  the  grantee;  and  in  support  of  that 
grant  the  respondent  had  cited  Stark  v.  Barrett,  and  Gates  v. 
Salmon,  and  other  cases  in  which  the  rule  applicable  to  convey- 
ances of  specific  tracts  was  discussed,  and  had  sought  to  invoke 
that  doctrine  in  behalf  of  the  asserted  water-right.  And  it  was 
in  that  connection  that  the  court  said  that  the  former  decisions 
on  the  subject  should  not  be  pushed  further ;  that  is,  that  they 
should  not  be  so  extended  as  to  embrace  the  asserted  right  of 
one  tenant  in  common  to  create  an  easement  on  the  common 
land.  The  case,  however,  recognizes  the  rule  as  hereinbefore 
stated.  (It  may  be  remarked,  as  was  said  in  that  case,  that  it 
appears,  from  many  cases  in  the  California  Reports,  to  have 
been  a  common  custom  among  the  owners  of  larore  Mexican 
grants  in  California  for  individual  cotenants  to  convey  specific 
parcels  of  the  common  land.  The  custom  probably  grew  out  of 
the  fact  that  during  the  long  periods  of  time  necessary  to 
complete  titles,  to  obtain  patents,  and  to  make  partitions  there 
could  be  but  little  beneficial  use  of  the  land  unless  it  were 
segregated  into  parcels  by  the  cotenants  and  their  grantees.) 
Our  conclusion  on  this  point  is  that  the  court  below  was  right  in 
holding  that  specific  tracts  embraced  in  deeds  purporting  to  con- 
vey the  whole  title  should  be  allotted  in  severalty  to  the  grantees 
therein,  and  charged,  respectively,  to  the  shares  and  interests  of 


ADJOINING    TRACT    REFERRED    TO    AS    A    MONUMENT.  (J91 

the  grantin<^  cotcuiints,  where  it  could  bo  done  without  material 
injury  to  the  rights  of  the  cotenants  not  joining  in  such  deeds, 
in  manner  as  set  forth  in  the  findings  and  decree. 

2.  There  weie  also  quitclaim  deeds  of  interest  in  specific 
tracts ;  and  with  respect  to  them  the  court  found  as  follows : 
•♦And  it  further  appearing  that  various  of  said  cotenants  sold 
fractional  undivided  interests  in  specific  tracts  out  of  the  com- 
mon land  of  said  rancho,  and  executed  to  the  purchasers  deeds 
of  conveyance  purporting  to  convey  interests  in  such  specific 
tracts  to  the  purchasers  in  fee,  the  interests  .described  in  such 
deeds  should  be  allotted  and  set  apart  in  partition  to  such  pur- 
chasers, or  their  grantees,  respectively,  in  such  manner  as  to 
make  such  deeds  effectual  as  conveyances  of  such  interests,  if 
the  same  can  be  done  without  material  injury  to  the  rights  and 
interests  of  other  cotenants  who  did  not  join  in  such  convey- 
ances, or  those  claiming  under  such  other  cotenants,  or  any 
of  them  ;  and  the  interests  so  conveyed,  and  hereinafter  desig- 
nated as  fractional  interests  of  specitic  tracts,  are  to  be  charged 
in  proportion  to  their  value  to  the  interests  in  said  rancho  of 
the  same  grantors."  We  see  no  error  in  this  finding.  The 
grantee  in  such  a  deed  cannot  expect,  or  legally  claim  more 
than  the  deed  purports  to  convey,  which  is  merely  the  share  of 
the  grantor  in  the  tract.  The  contention  of  some  of  the  appel- 
lants that  such  a  deed  should  be  filled  by  an  allotment  of  the 
whole  tract  in  severalty  cannot  be  maintained,  and  where  there 
is  a  covenant  of  warranty  in  such  a  deed  it  attaches  merely  to 
the  interest  which  the  deed  purports  to  convey.  Kimball  v, 
Semple,  25  Cal.  441  ;  Gee  v.  Moore,  14  Cal.  472  ;  Morrison  v. 
Wilson,  30  Cal.  344;  San  Francisco  v.  Lawton,  18  Cal.  365; 
Barrett  v.  Birge,  50  Cal.  655  ;  Brannock  v.  Monroe,  65  Cal.  491 ; 
4  Pac.  Eep.  488. 

(The  remainder  of  the  decision  is  omitted,  it  not  being  con- 
sidered necessary  for  illustration  of  the  particular  principle,  for 
which  the  case  is  reported.) 


Adjoining  Tract  Previously  Conveyed  Referred  to  in  a  Sub- 
sequent Conveyance  as  a  Monument. 

Probett  V.  Jenkinson,  106  Mich.  475;  63  N.  W.  648. 

McGrath,  C.  J.  This  is  a  bill  to  quiet  title  to  a  gore-shaped 
parcel  of  land,  which  was  included  in  what  is  known  as  the 
♦♦  Steam-Mill  Reserve  "  on  Black  river,  in  the  city  of  Port  Hu- 
ron. The  reserve  fronted  on  the  river,  and  the  land  adjoining 
on  the  north,  east,  and  west  was  platted  prior  to  1837.     In  1866 


092      THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

Skinner  &  Ames,  the  then  owners  of  the  reserve,  subsciibed  and 
recorded  the  phit.  In  that  phit  the  parcel  lying  south  of  River 
street  and  west  of  Bridge  street  was  distinguished  as  "  Lot  C." 
In  1876,  Skinner  &  Ames  subdivided  lot  C.  according  to  the 
following  plat;     (Plat  omitted.) 

This  plat  was  not  acknowledged  or  recorded.  In  the  same 
year  they  mortgaged  lots  1,  2,  3,  and  4,  to  one  Fish,  and  later 
in  that  year  gave  a  mortgage  to  Martha  C.  T.  Williams,  of  De- 
troit, upon  the  remainder  of  said  lots.  The  description  in  the 
Williams  mortgage  is  as  follows:  "  Lots  5,  6,  7,  8,  9,  10,  11, 
and  12  in  the  Skinner  &  Ames  plat  of  a  p;irt  of  the  Black  River 
Steam-Mill  reserve,  being  all  that  part  of  said  reserve  south  of 
River  street  and  west  of  Seventh  street  bridge,  except  lots  1,  2, 
3,  and  4,  shaded  green  in  the  map  hereto  annexed.  As  stated  in 
the  mortgage,  there  was  attached  to  it  a  m;ip,  which  was  a  copy 
of  the  original  plat  in  the  possession  of  Skinner  &  Ames,  in  so 
far  as  the  lots  south  of  River  street  and  west  of  Seventh  stieet 
bridge  were  concerned,  except  that  it  did  not  have  the  letter  C 
upon  it,  nor  did  it  have  all  of  the  dimensions  and  monuments 
that  were  upon  the  original  plat.  Lot  10  is  shown  on  this  map 
as  being  50  feet  on  River  street,  and  very  much  wider  upon 
Black  river,  but  the  figures  indicating  its  width  on  the  river  are 
not  given  as  they  are  on  the  original  plat,  where  they  are  stated 
at  90  feet.  This  map  was  a  tracing  made  on  the  same  scale  as 
the  original  plat,  and  when  the  mortgage  came  to  be  recorded 
the  map  was  detached  from  the  mortgage,  and  attached  to  the 
record  in  the  register's  office,  where  it  has  since  remained. 

In  February,  1878,  complainant  purchased  from  Skinner  & 
Ames  lots  11  and  12.  Subsequently. Mrs.  Williams'  mortgage 
was  foreclosed  in  chancery,  and  on  the  28th  of  January  all  of 
the  lots  described  in  the  mortgasfe  were  bid  off  to  Mrs.  Martha 
C.  T.  Williams.  On  the  27lh  day  of  July,  1880,  Mrs.  Williams 
conveyed  the  two  lots  to  the  complainant,  describing  them  as 
follows:  "  Lots  11  and  12  of  the  Skinner  &  Ames  plat  of  the 
subdivision  of  a  part  of  the  Black  River  Steam-Mill  reserve,  in 
said  city  of  Port  Huron,  south  of  River  street  and  west  of 
Seventh  street  bridge,  being  lots  now  occupied  by  said  Probett, 
and  on  which  he  has  located  limekilns,  and  were  conveyed  to 
him  by  Thomas  S.  Skinner  and  wife  and  Walhice  Ames  and 
wife."  The  next  year,  in  May,  1881,  the  complainant,  desiring 
more  land,  through  Mr.  B.  C.  Farrand,  an  attorney  at  Port 
Huron,  applied  to  Mr.  Elisha  Taylor,  representing  Mrs.  Martha 
Williams,  to  know  what  Mrs.  Williams  would  take  for  lot  10, 
or  for  the  west  half  of  that  lot,  and  received  a  reply  that  she 
would  take  $1,000  for  the  whole  lot,  or  $600  for  the  west  half 


ADJOINING    TRACT    REFERRED    TO    AS    A    MONUMENT.  693 

of  it.  The  compluiuant  accepted  the  proposition  for  one-half  of 
the  lot  at  $600.  And  on  the  10th  day  of  May,  1881,  Mr.  Elisha 
Taylor  drew  up  the  deed,  and  it  was  executed  by  Mrs.  Williams, 
and  sent  through  Mr.  Fariand,  to  the  complainant.  When  this 
deed  was  drawn,  Mr.  Taylor  supposed  the  lot  was  50  feet  wide 
both  on  the  river  and  on  River  street,  whereas,  as  a  matter  of 
fact,  it  was  50  feet  wide  on  River  street,  and  had  a  frontage  on 
Black  river  of  90  feet.  The  description  in  this  deed  is  as  fol- 
lows: "  A  parcel  of  land  twenty-five  feet  wide  in  front  on  the 
south  side  of  River  street,  and  of  the  same  width  extending 
southerly  to  the  channel  bank  of  Black  river,  and  known  as  the 
westerly  part  of  lot  10  of  the  Skinner  &  Ames  plat,  south  of 
River  street  and  west  of  Seventh  street."  The  com|)lainant 
purchased  the  west  half  of  lot  10  in  May,  and  in  June  following, 
John  Jenkinson,  the  husband  of  the  defendant,  through  Mr. 
Elisha  Taylor,  contracted  with  Mrs.  Williams  for  the  purchase 
of  lots  5,  6,  7,  8,  9,  and  the  easterly  half  of  lot  10,  according  to 
said  Skinner  &  Ames  plat  of  said  Steam-Mill  reserve.  The  date 
of  this  contract  is  fixed  by  John  Jenkinson,  on  page  113  of  the 
record,  as  in  June,  1881.  There  was  nothing  upon  the  ground 
to  dc'sisrnate  where  the  division  line  between  the  east  half  of  lot 
10  and  the  west  half  of  such  lot  should  be  located  when  com- 
plainant purchased,  or  when  Mr.  John  Jenkinson  contracted  for 
the  east  half,  nor  was  there  at  the  time  when  the  defendant 
afterwards  obtained  her  deed  from  Mrs.  Williams;  but  the 
premises  were  what  might  be  termed  open,  or  in  common,  so  far 
as  anything  indicating  the  division  line  between  complainant's 
and  defendant's  premises.  On  the  23d  day  of  July,  1884, 
at  the  request  of  John  Jenkinson,  the  husband  of  the  defendant, 
Mrs.  C.  T.  Williams,  through  Mr.  Elisha  Taylor,  executed 
and  delivered  to  the  defendant  a  deed  of  the  lands  embraced 
in  the  contract,  describing  them  in  such  deed  as  follows: 
"  All  that  part  of  the  Bhick  River  Steam-Mill  reserve  situated 
and  lying  between  River  street  and  the  Black  river,  and 
bounded  on  the  westerly  side  by  lands  owned  by  Stephen 
T.  Probett,  and  bouniled  on  the  easterly  side  by  River  street, 
lots  numbered  1,  2,  3,  and  4  of  Skinner  &  Ames  plat,  and 
mortgjiged  by  Skinner  and  Ames  to  Arthur  Fish,  and  south 
by  the  channel  bank  of  Black  river  —  intending  hereby  to 
convey  lots  numbered  5,  6,  7,  8,  9,  and  the  easterly  half  of  lot 
10,  according  to  the  Skinner  &  Ames  plat  of  that  part  of 
said  reserve,  without  guarantying  the  correctness  of  said  plat, 
though  it  is  supposed  to  be  correct,  subject  to  all  taxes  and 
assessments  in  the  year  of  1881  and  subsequently,  which  the  now 
party  of  the  second  part  assumes,  and  is  to  pay  and  cancel,  if 


694  THE  REQUISITES  AND  COMPONENT  PARTS  OF  A  DEED. 

not  already  ptiicl"  Tho  record  was  rccoided  on  July  31,  1884. 
On  the  24th  day  of  July,  1884,  John  Jeiikinson  and  his  wife, 
the  defendant,  Eliza  Jane  Jenkinson,  made  a  niorl<;a<50  to  the 
Michigan  Mutual  Life  Insurance  Company  upon  the  east  half 
of  lot  10,  and  other  lands,  describing  said  land  ia  said  mortgage 
as  follows:  "  Lots  5,  6,  7,  8,  9,  and  the  east  half  of  lot  10,  of 
that  part  of  Black  River  Steam-Mill  reserve  lying  between  Black 
river  and  River  street,  bounded  on  tiie  west  by  land  owm^d  and  oc- 
cupied by  Stephen  T.  Probett,  on  the  west  by  the  lands  mortgaged 
by  Skinner  &  Ames  to  Arthur  Fish,  August  2olh,  187(3  ;  said  lots 
being  numbered  ac(;ording  to  Skinner  &  Ames  plat  of  a  })art  of 
Black  River  Steam-Mill  reserve."  The  a[)plication  to  the  in- 
surance company  was  made  by  Mr.  Jenkinson  and  his  wife, 
through  Mr.  Farrand,  for  the  purpose  of  taking  up  the  contract 
and  obtaining  the  deed.  This  deed  and  morti>;age  were  executed 
three  years  after  the  execution  of  the  deed  by  Mrs.  Williams  to 
the  complainant  of  the  west  half  of  the  lot,  and  likewise  three 
years  after  the  contract  made  by  her  to  the  husband  of  the 
defendant,  of  the  east  half  of  said  lot.  At  the  time  that  the 
complainant  purchased  the  west  half  of  lot  10,  he  had  not  seen 
the  plat,  or  a  co[)y  of  the  plat,  referred  to  as  the  "  Skinner  & 
Ames  Plat,"  and  did  not  till  1885,  when  he  went  to  Mr.  Skinner, 
and  was  shown  the  plat.  And,  at  the  tiniethat  Mr.  Ta}lordrew 
the  deed  to  complainant  for  the  west  halt'  of  lot  10,  Taylor  had 
no  knowledge  in  regard  to  the  wiilth  of  the  lot  on  the  river.  In 
1885  John  Jenkinson  asserted  to  complainant  that  the  latter  only 
had  125  feet,  and  complainant  then  examined  his  deed,  and  also 
saw  Mr.  Skinner,  and  obtained  from  him  the  original  plat,  and 
took  the  same  to  Detroit,  and  showed  it,  together  with  his  deed, 
to  Mr.  Taylor;  and  Mr.  Taylor,  in  order  to  correct  tho  mistake 
which  had  been  made,  on  the  14th  day  of  December,  1885,  drew 
up  and  executed  a  quitclaim  deed  from  Mrs.  Martha  C.  T.  Will- 
iams to  the  complainant  of  the  west  half  of  lot  10,  which  deed 
was  recorded  December  16,  1885. 

It  is  clear  from  this  record  that,  when  complainant  purchased 
the  portion  of  lot  10,  both  he  and  Taylor  supposed  that  said  lot 
was  of  the  same  width  from  front  to  rear  ;  that  both  sup[)osed 
that  the  conveyance  made  included  all  of  the  west  half  of  lot  10  ; 
and  that,  when  the  conveyance  was  made  to  Jenkinson,  Taylor 
then  supposed  that  the  west  half  of  lot  10  had  hitherto  been  con- 
veyed to  Probett,  and  that  the  conveyance  then  being  made  in- 
cluded all  of  the  remainder  of  said  lot  10.  The  question,  how- 
ever, hinges,  not  upon  the  intention  of  the  parties  respecting  the 
land  intended  to  be  conveyed  by  the  deed  to  complainant,  but 
rather  upon   the  construction    to  be    given  to    the    description 


SPECIFIC    DESCRIPTION    CONTROLS    GENERAL    DESCRIPTION.       695 

in  the  deed  from  Martha  C.  T.  Williams  to  defendant.  The 
case  is,  we  think,  ruled  by  Piummer  v.  Gould,  92  Mich.  1  ;  52 
N.  W.  146.  The  intention  of  the  grantor  is  clearly  expressed 
in  the  conveyance  to  defendant.  Defendant  contends  that  she 
went  upon  the  land,  and  that  a  line  corresponding  to  the  line  as 
given  in  the  conveyance  to  complainant  was  pointed  out  to  her  by 
Probett  as  the  east  line  of  his  land,  but  this  is  denied.  She  had 
examined  a  plat  which,  although  it  did  not  give  distances  on  the 
south  line,  clearly  indicated  that  the  lots  were  wider  on  the  river, 
and  she  accepted  the  deed  which  clearly  expressed  the  giantor's 
intention.  The  decree  is  atErmed,  with  costs  to  complainant. 
The  other  justices  concurred. 


A  Specific  Description  will    Control    General  Description  — 
Reference  to  Other  Deed  or  Map. 

Prentice  v.  N.  Pac.  Ry.  Co.,  154  U.  S.  163. 

In  error  to  the  circuit  court  of  the  United  States  for  the  district 
of  Minnesota. 

This  was  an  action  in  ejectment  by  Frederick  Prentice  against 
the  Northern  Pacific  Railroad  Company,  the  St.  Paul  &,  Didnth 
Railroad  Company,  and  Owen  Fargusson.  On  trial  without  a 
jury  the  circuit  court  rendered  judgment  tor  defendants.  Plain- 
tiff brought  error. 

This  action  of  ejectment  was  brought  September  7,  1883,  to 
recover  an  undivided  half  of  certain  lands  in  the  city  of  Duluth, 
county  of  St.  Louis,  Minn.  Pursuant  to  a  wiitten  stipulation 
of  the  parties,  the  ca-e  was  tried  without  a  jury,  and  upon  the 
question  of  title  ah)ne,  and  resulted  —  Mr.  Justice  Miller  and 
Judge  Nelson  concurring  —  in  a  judgment  for  the  defendants. 
43  Fed.  270. 

The  case  made  by  the  special  finding  of  facts  is  substantially 
as  follows  :  — 

The  sixth  section  of  article  2  of  the  treaty  of  the  30th  day  of 
September,  A.  D.  1854,  between  the  United  States  and  the 
Chippewa  Indians  of  Lake  Superior  and  the  Mississippi,  ratified 
(pursuant  to  a  resolution  of  the  United  States  Senate  passed  on 
the  10th  day  of  January,  1855)  by  the  President  on  the  29ih  ih\y 
of  January,  1855,  whereby  those  Indians  ceded  to  the  United 
States  certain  territory  lying  adjacent  to  the  headwaters  of  Lake 
Superior,  contained  the  following  provisions,  viz.  :  "  And  bein^- 
desirous  to  provide  for  some  of  his  connections  who  have  ren- 
dered his  people  important  services,  it  is  agreed  that  Chief 
Buffalo  may  select  one  section  of  land  at  such  place  in  the  ceded 


GOO        THE    IIKQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

territory  as  ho  may  sec  fit,  which  shall  be  reserved  for  that  pur- 
pose and  convoyed  by  tlie  United  States  to  such  person  or  persons 
iis  he  niiiy  direct."      10  Stat.  1110. 

Under  the  provision  of  the  treaty,  and  on  the  day  of  its  date, 
Cliief  Butlalo,  by  an  instrument  of  writing  executed  by  him,  and 
filed  in  the  office  of  the  United  States  commissioner  of  Indian 
affairs  at  Washington,  selected  the  land  to  be  conveyed  by  the 
United  States,  and  appointed  the  persons  to  whom  it  was  to  be 
conveyed,  indicating  the  selection  and  appointment  as  follows; 
"  I  hereby  select  a  tract  of  land  one  mile  square,  the  exact  boun- 
dary of  which  may  be  defined  when  the  surveys  are  made,  lying 
on  the  west  shore  of  St.  Louis  bay,  Minnesota  Territory, 
immediately  above  and  adjoining  Minnesota  point;  and  I  direct 
that  patents  be  issued  for  the  same,  according  to  the  above 
recited  provision,  to  Shavv-bwaw-skung,  or  Benjamin  G.  Arm- 
strong, my  adopted  son,  to  Matthew  May-dway-gwon,  my 
nephew ;  to  Joseph  May-dway-gwon  and  Antoine  May-dway- 
gwon,  his  sons,  —  one  quarter  section  to  each." 

Matthew,  Joseph,  and  Antoine,  under  date  of  September  17, 
1855,  executed  and  delivered  to  Armstrong  an  instrument  assign- 
ing to  him  their  right,  title,  and  interest  under  the  ai)pointment 
and  selection  of  Chief  Buffalo.  That  assignment,  after  referring 
to  the  treaty,  and  the  above  instrument  of  selection  and  appoint- 
ment, provided:  — 

"  In  consideration  of  the  premises,  and  of  one  dollar  to  us  in 
hand  paid  by  the  said  Benjamin  G.  Armstrong,  the  receipt  whereof 
is  hereby  acknowledged,  we  do  hereby  sell,  assign  and  transfer, 
jointly  and  severally,  all  our  right,  title,  interest,  equity,  claim 
and  property  in  and  to  the  said  land,  and  all  our  right  and  equity 
in  and  to  the  said  instrument  so  made  by  the  said  Buffalo,  jointly 
and  severally,  and  our,  and  each  of  our,  right  and  equity  to  have 
patents  issued  to  us,  according  to  the  above-cited  directions  of 
the  said  Buffalo  ;  and  we  hereby  direct,  jointly  and  severally, 
that  patents  issue  to  said  Benjamin  G.  Armstrong  accordingly." 

This  instrument  of  assignment  was  executed  by  Matthew, 
Joseph,  and  Antoine  in  the  presence  of,  and  before,  the  United 
States  agent  and  the  United  States  interpreter. 

Armstrong  and  wife,  September  11,  1856,  made,  executed, 
and  delivered  to  the  plaintiff  herein  a  deed  of  conveyance,  the 
cited  consideration  being  $8,000.  The  land  so  conveyed  is  thus 
described  in  the  deed:  "  One  undivided  half  of  all  the  following: 
described  piece  or  parcel  of  land,  situate  in  the  county  of  St. 
Louis  and  territory  of  Minnesota,  and  known  and  described  as 
follows,  to  wit :  Beginning  at  a  large  stone  or  rock  at  the  head 
of  St.  Louis  River  bay,  nearly  adjoining  Minnesota  point,  com- 


SPECIFIC  DESCRIPTION  CONTROLS  GENERAL  DESCRIPTION.       697 

raencing  at  said  rock,  and  running  east  one  mile,  north  one  mile, 
west  one  mile,  south  one  mile,  to  the  place  of  beginning,  and 
being  the  hind  set  off  to  the  Indian  chief  Buffalo  at  the  Indian 
treaty  of  September  30th,  A.  D.  1854,  and  was  afterwards  dis- 
posed of  by  said  Buffalo  to  said  Armstrong,  and  is  now  recorded 
with  the  government  documents,  together  with,  all  and  singular, 
the  tenements,  hereditaments,  and  appurtenances  thereunto 
belonging  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits 
thereof,"  etc.  The  deed,  sealed  and  delivered  in  the  presence 
of  a  justice  of  the  peace  of  Wisconsin,  was  acknowledged  by  the 
grantors  on  the  day  of  its  execution  before  that  officer,  whose 
official  character  was  certified  by  the  clerk  of  the  circuit  court  of 
the  county  where  the  acknowledgment  was  made.  It  was  not 
certified  to  have  been  acknowledged  in  accordance  with  the  laws 
of  Wisconsin.  The  deed  was  duly  recorded  in  the  county  of 
St.  Louis,  territory  of  Minnesota,  on  the  4th  day  of  November, 
A.  D.  1856. 

Armstrong  and  wife,  on  the  27th  day  of  August,  1872,  exe- 
cuted and  delivered  to  the  plaintiff  a  confirmatory  deed,  which 
was  duly  recorded  in  the  county  of  St.  Louis,  State  of  Minnesota, 
September  2,  1872.     The  deed  was  in  these  words  :  — 

*'  Whereas,  on  the  eleventh  day  of  September,  in  the  year  one 
thousand  eight  hundred  and  fifty-six,  we,  Benjamin  G.  Arm- 
strong and  Charlotte  Armstrong,  wife  of  aforesaid  Benjamin 
G.  Armstrong,  conveyed  by  a  quit-claim  deed  to  Frederick 
Prentice,  of  Toledo,  Ohio,  the  undivided  one-half  part  of  all  our 
interest  in  certain  lands  situated  at  or  near  the  head  of  St.  Louis 
bay,  and  intended  to  describe  our  interest  in  what  is  known  as 
the  '  Chief  Buffalo  Tract,'  at  the  head  of  St.  Louis  bay,  Minne- 
sota Territory,  and  then  believing  that  the  description  in  said 
deed  would  cover  or  was  the  tract  that  would  be  patented  to  us  by 
the  United  States  of  America,  according  to  said  Buffalo's  wishes, 
and  a  contract  we  held  from  the  heirs  of  said  Buffalo,  but,  to  def- 
initely fix  upon  the  lands  designed  to  be  conveyed,  it  was  stated 
in  said  deed  to  be  the  land  set  off  to  the  Indian  chief  Buffalo  at 
the  Indian  treaty  of  September  thirtieth,  in  the  year  one  thou- 
sand eight  hundred  and  fifty-four ;  and,  further,  I,  the  said  Arm- 
strong, gave  a  contract  on  the  tenth  day  of  September,  in  the 
year  one  thousand  eight  hundred  and  fifty-six,  to  the  said  Fred- 
erick Prentice,  binding  ourselves  and  heirs  to  give  said  Frederick 
Prentice  any  further  writing  or  instrument  he  might  require. 

*'  And  on  the  first  day  of  July,  in  the  year  one  thousand  eight 
hundred  and  fifty-seven,  I,  Benjamin  G.  Armstrong,  and  Char- 
lotte Armstrong,  agreed  to  and  did  sell  to  Frederick  Prentice 


698      THE    REQUISITES    AND    COMPONENT   PARTS    OF   A    DEED. 

the  other  one-half  of  said  Buffulo  tract,  for  which  said  Frederick 
Prentice  paid  us  sometliitig  over  two  thousand  ($2,000)  dollars, 
and  since  that  time  has  paid  us  to  our  full  satisfaction  for  the 
whole  property;  and  we  agree  to,  and  do  by  these  presents, 
confess  payment  in  full  for  the  whole  of  the  above  tract,  in 
compliance  of  the  first  deed  for  the  one  undivided  half,  and  the 
carrying  out  of  the  contract  to  sell  the  balance  July  first,  in  the 
year  one  thousand  eight  hundred  and  fifty-seven.  This  is  in- 
tended to  cover  the  land  deeded  by  us  to  the  said  Prentice  in 
the  deed  given  on  the  eleventh  day  of  September,  one  thousand 
eight  hundred  and  fifty-six,  and  recorded  in  Liber  A  of  Deeds, 
page  106,  at  Duluth,  State  of  Minnesota,  and  the  land  included 
in  the  contract  of  the  first  of  July,  eighteen  hundred  and  fifty- 
seven,  and  intended  to  cover  the  lands  as  described  in  patents 
from  the  United  States  of  America  to  Benjamin  G.  Armstrong, 
Matthew  May-dway-gvvon,  Joseph  May-dway-gwon,  and  An- 
toine  May-dway-gvvon,  and  descri!)ed  as  follows:  To  Ben- 
jamin G.  Armstrong,  the  west  half  of  the  southwest  quarter  and 
the  lot  number  five  (5)  of  section  twenty-seven,  and  lot  No. 
three  (3)  of  section  thirty-four,  containing  together  (182.62) 
one  hundred  and  eighty-two  and  sixty-two  one-hundredths  acres ; 
and  to  Joseph  May-dway-gwon  the  southeast  quarter  of  sec- 
tion twenty-eight,  containing  one  hundred  and  sixty  acres;  and 
Antoine  May-dway-gwon,  the  east  half  of  the  northeast  quarter 
of  section  twenty-eight,  and  the  west  half  of  the  northwest 
quarter  of  section  twenty-seven,  containing  one  hundred  and 
sixty  acres. 

"And  to  Matthew  May-dway-gwon  the  southwest  quarter  of 
section  twenty-two,  containing  one  hundred  and  sixty  acres,  all 
of  the  above  being  in  township  fifty  north,  of  range  fourteen 
west,  of  the  fourth  principal  meridian,  State  of  Minnesota  ;  and 
the  three  last  named  pieces  of  land  have  since  been  deeded  by 
the  said  Matthew,  Joseph,  and  Antoine  May-dway-gwon  to  Char- 
lotte Armstrong,  but  previous  to  the  date  of  said  deeds  the  above- 
named  Joseph,  Matthew,  and  Antoine  May-dway-gwon  had  as- 
signed or  transferred  all  their  right,  title,  and  interest  ther(3in  to 
the  said  Benjamin  Armstrong.  I,  the  aforesaid  Benjamin  G. 
Armstrong,  did  sell  by  deed  and  contract  to  Frederick  Prentice, 
which  I,  the  said  Charlotte  Armstrong,  knew  at  the  time,  but  did 
not  know  but  that,  by  getting  another  deed  or  conveyance  after 
the  patents  were  issued,  we  could  sell  the  property,  but  am  not 
satisfied  that  we  had  sold  and  assigned  all  our  right,  title, 
and  interest  to  Frederick  Prentice  previous  to  our  deed- 
ing to  any  other  person  or  persons,  and  that  we  had  no 
right  to  deed  or  convey  to  any  other  person  or  persons,  as  the 


SPECIFIC   DESCRIPTION    CONTROLS    GENERAL    DESCRIPTION.     099 

title  to  the  laods  above  described  was  then,  virtually  and  by  right, 
vested  in  the  said  Frederick  Prentice,  and  that  the  first  deed  for 
the  one-halt  and  the  contract  for  the  remaining  half  of  said  land, 
with  the  payment  thereon  made  at  the  time  by  the  said  Fred- 
erick Prentice,  bound  us  to  give  him  good  and  sufficient  deeds  to 
said  jjroperty  whenever  so  demanded  ;  and  wo  do  hereby  assign 
and  quitclaim  all  our  right,  title,  and  interest  now  or  at  any  time 
held  by  us  to  all  the  al)ove-descrihed  property  in  fulfillment  of 
our  ajireement  with  the  said  Frederick  Prentice." 

The  tract  of  land  which  Chief  Buffalo  had  designated  as  his 
selection  on  the  day  of  the  treaty  did  not  correspond  with  the 
section  lines  when  the  land  came  to  be  surveyed  into  sections, 
and  part  of  it  was  found  to  be  occupied  and  claimed  by  certain 
Indian  traders  under  the  treaty.  After  a  lengthy  correspond- 
encer  and  investigation  in  the  department  of  the  interior,  the 
relatives  of  Buffalo,  entitled  to  the  land  reserved  for  them,  con- 
ceded the  validity  of  the  claims  of  these  Indian  traders,  and,  in 
lieu  of  the  lands  thus  held  by  them,  received  other  lands  adjacent 
to  that  selected  by  Buflalo  to  make  up  the  quantity  of  (540  acres, 
but  not  in  the  form  of  a  parallelogram,  though  maintaining  a 
continuous  connection. 

A  report  of  the  secretary  of  the  interior  to  the  president, 
under  date  of  Sei)tcmber  21,  1858,  and  made  part  of  the  find- 
ings, contained,  among  other  things,  the  following:  — 

"  Now,  therefore,  under  all  the  circumstances  of  the  case,  it 
haviiig  been  fully  proved  that  these  relatives  of  the  Chief  Buf- 
falo acquie.-ce  in  the  selection  made  for  them  by  agent  Gilbert, 
and  desire  that  patents  should  issue  to  them  for  this  land,  and 
the  commissioner  of  Indian  affairs  having  recommended  such 
approval,  I  have  respectfully  to  request  that  you  will  ai>prove 
the  same,  in  order  that  patents  may  issue  in  accordance  with  their 
request  as  follows,  viz. :  To  Matthew  May-dway-gwon,  S.  W. 
i  Sec.  22,  T.  50  N.,  R.  14  W.,  160  acres  to  Antoine-May-dway- 
gwon,  E.  i  N.  E.  i  Sec.  28  and  W.  ^N.  W.  i  Sec.  27,  T.  50 
N.,  R.  14  VV.,  160  acres;  to  Joseph  May-dway-gwon,  S.  E.  ^ 
Sec.  28,  T.  50  N  ,  R.  14  W.,  160  acres;  to  Shaw-bwaw-skung, 
or  Benjamin  G.  Armstrong,  W.  ^  S.  W.  ^  Sec.  27,  h)t  No.  3, 
Sec.  34,  lot  No.  5,  Sec.  27,  182.62." 

The  patent  to  Armstrong,  issued  October  23,  1858,  contained 
the  following  recitals  and  description  of  the  land  embraced  by 
it:  — 

"  Whereas  it  appears  from  a  return  dated  the  twenty-seventh 
day  of  Sei)tember,  one  thousand  eight  hundred  and  fifty-eight, 
from  the  office  of  Indian  affairs  to  the  general  land  office,  that 
there  has  been  selected   and   approved  for  '  Shaw-bwaw-skung, 


700       TllK    UEQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

or  Bcnjiiiniu  G.  Armstrong,'  :i8  ouo  of  the  '  connections  '  of 
said  Chief  Biifrulo,  the  west  half  of  the  southwest  quarter 
and  lot  number  five,  both  of  section  twenty-seven,  and 
lot  number  three  of  section  thirty-four,  containing  together 
one  huniired  and  eiglity-two  acres  and  sixty-two  hundredLha  of 
au  acre,  all  in  tovviisliip  f)!)  north,  of  range  14  west  of  the  fourth 
principal  meridian,  in  tlie  Slate  of  Minnesota.  Now,  know  ye," 
etc. 

The  parties,  at  the  trial,  entered  into  the  following  stipula- 
tion :  — 

♦♦  It  is  admitted  for  the  purposes  of  the  trial  of  the  above- 
entitled  action:  That  the  l;ind  in  dispute,  described  in  complaint 
of  phiintiff  herein,  is  part  of  the  land  described  and  included  in 
the  patent  of  the  United  States  to  Benjamin  G.  Armstrong,  dated 
October  23,  1858,  and  recorded  in  Book  B,  at  page  500,  in  the 
office  of  the  register  of  deeds  of  St.  Louis  County,  Minnesota. 
That  the  defendants  are  in  possession  of  the  specific  portions  of 
said  land  described  in  their  respective  answers  herein.  And,  as 
respects  the  Northern  Pacific  liaihoad  Company,  it  is  in  posses- 
sion of  the  certain  [jorlions  of  said  land  colored  blue  upon  the 
map  hereto  attached,  and  that  all  the  defendants  assert  title  to 
said  respective  portions,  derived  from  a  certain  deed  made  and 
executed  by  Benjamin  G.  Armstrong  and  wile  to  John  M.  Gil- 
man,  dated  August  31,  1864,  and  recorded  in  the  office  of  the 
register  of  deeds  of  St.  Louis  County,  Minnesota,  September 
12,  1864,  in  Book  C  of  Deeds,  at  page  665,  and  from  a  certain 
other  deed  ma<le  and  executed  by  Benjamin  G.  Armstrong  and 
wife  to  Daniel  S.  Cash  and  James  H.  Kelly,  bearing  date  October 
22,  1859,  and  filed  for  record  in  the  office  (jf  the  register  of  deeds 
in  and  for  said  St.  Louis  Couniy,  January  5,  1860,  and  thereafter 
recorded  in  Book  C  of  Deeds,  at  page  206.  That  the  said  de- 
fendants have  succeeded  to  whatever  title  or  right  said  Kelly 
and  Cash  and  said  Gilman  obtained  by  virtue  of  said  deeds, 
respectively,  in  and  to  the  premises  in  dispute.  That  at  the 
commencement  of  this  suit  said  defendants  withheld  said  prem- 
ises, and  the  rents,  issues,  and  profits  of  the  same,  fiora  said 
plaintiff,  although  they  had  theretofore  been  requested  to  admit 
him  to  the  pos-essiou  of  an  undivided  half  (i)  of  said  premises, 
and  the  rents  and  profits  thereof.  That  the  undivided  half  (^^) 
of  the  portion  of  the  premises  described  in  saiil  complaint,  claimed 
by  each  of  said  defendants,  is  worth  fifty  thousand  dollars 
($50,000)  and  upwards."  The  court  found  the  fact3  in  accord- 
ance with  this  stipulation. 

The  United  States  government  surveys  of  the  lands  ceded  by 
the  treaty  of  September  30,  1854,  to  the  United  States,  had  not 


SPECIFIC   DESCRIPTION   CONTROLS   GENERAL   DESCRIPTION.       701 

been  made  at  the  date  of  the  deed  from  Armstrong  to  plaintiff, 
and  were  not  made  until  the  year  following  that  date. 

Gihiian  took  the  above  conveyance  without  actual  notice  of  the 
deed  from  Armstrong  to  the  plaintiff  of  September  11,  1856,  or 
that  plaintiff  claimed  an  interest  in  the  land  so  conveyed  to  him. 

The  defendants  herein  clailn  title  to  the  pieces  or  parcels  of 
land  in  controversy  as  grantees  of  Gilman,  and  under  and 
through  the  deed  to  Gilman  of  August  31,  1864. 

The  large  stone  or  rock  at  the  head  of  St.  Louis  River  bay, 
nearly  adjoining  Minnesota  point,  described  in  the  deed  from 
Armstrong  to  Prentice,  is  the  beginning  of  the  boundary  of 
the  tract  conveyed,  is  well  identified,  and  was  generally  known 
to  the  few  people  familiar  with  the  place,  and  was  recognizable 
at  the  time  of  the  trial  below  ;  and  a  mile  square,  measured 
from  that  point,  as  called  for  in  the  deed,  would  wholly 
depart  from  the  shore  of  St.  Louis  bay,  and  would  cover  about 
one-half  or  three-fifths  land,  and  the  remainder  the  water  of 
Lake  Superior. 

The  land  selected  by  Buffalo  Chief  lay  upon  the  shore  of  St. 
Louis  bay,  immediately  adjoining  Minnesota  point;  and  this 
selection  was  followed,  as  near  as  it  could  be,  by  the  patents  of 
the  United  States  issued  to  satisfy  that  reservation,  considering 
the  elimination  from  the  mile  square  of  the  lands  held  by  the 
traders,  and  the  vagueness  of  Buffalo's  description,  and  the;  ne- 
cessity of  conforming  the  final  grant  to  the  surveys  of  the  United 
States. 

If  the  lines  of  the  course  called  for  as  east  and  west  in  the 
deed  of  Armstrong  to  Prentice,  under  which  the  plaintiff  asserts 
his  title,  were  exactly  reversed,  the  description  in  that  deed 
would  include  a  laige  [lart  of  the  land  actually  selected  by  Buf- 
falo Chief,  and  also  included  in  the  patents  from  the  United 
States,  but  it  would  not  include  the  lands  sued  for  in  this 
action. 

The  instrument  executed  by  the  Chief  Buffalo,  dated  Septem- 
ber 30,  1854,  was  the  only  selection  or  appointment  ever  made 
by  him  under  the  sixth  clause  of  the  second  article  of  the  said 
treaty. 

Chief  Buffalo  died  in  the  month  of  October,  1855. 

At  the  date  of  the  deed  to  Prentice,  of  September  11,  1856, 
Armsti  ong  did  not  have  any  interest  in  land  in  St.  Louis  County, 
Minnesota  Territory,  except  what  he  was  entitled  to  under  the 
Buffalo  selection  and  appointment  above  referred  to,  and  under 
the  above  assignment  from  the  other. 

The  conclusions  of  law  found  by  the  circuit  court  were:  — 

That  the  appointment  of  persons  to  whom  the  United  States 


702         THE    RKQUISITES    AND    CO.MPONKNT    PAKTS    OF    A    DEED. 

were  to  convoy  the  set-tioii  of  laud  reserved  l)y  the  ubove  pro- 
vision of  said  treaty  made  by  Chief  Buffalo  on  the  30th  day  of 
Sej)ten)bor,  1854,  was  a  valid  and  sniBeient  appointment  under 
thai  piovision,  and,  upon  the  ratification  of  the  treaty,  vested  in 
Arnistiong  and  the  other  appointees  named  such  an  interest  us 
the  treaty  gave  to  the  land  so  reserved  ; 

That  the  patent  of  the  United  States  to  Armstrong,  and  his 
acceptance  of  it,  was  a  valid  execution  of  the  treaty  on  that 
subject; 

That  the  deed  from  Armstrong  to  plaintiff,  of  September  11, 
185G,  was,  in  its  execution,  acknowledgment,  and  recording,  a 
valid  and  sufficient  deed,  and  its  record  constructive  notice  of  its 
contents; 

That  the  description  of  the  deed  of  Armstrong  to  plaintiff,  of 
September  11,  1856,  is  insufficient  to  convey  his  interest  in  or 
title  to  any  other  or  different  tract  of  land  to  which  he  might 
have  been  entitled  under  said  treaty  than  the  tract  described 
therein,  and  the  said  deed  is  ineflTectual  as  a  conveyance  to  plain- 
tiff of  any  interest  or  title,  except  such  as  Armstrong  had  in  or 
to  the  land  therein  described,  and  the  plaintiff  took  no  title 
under  it  to  the  land  for  the  possession  of  which  this  action  is 
brought. 

That  the  quitclaim  deed  from  Armstrong  to  Gilman,  of  August 
31,  1864,  conveyed  to  the  latter  such  interest,  and  no  more,  as 
Armstrong  had  in  the  land  therein  described  at  the  date  of  said 
deed;   and 

That  the  plaintiff  is  not  entitled  to  recover  in  this  action,  and 
judgment  must  go  in  favor  of  the  defendants,  for  their  costs  and 
disbursements. 

Mr.  Justice  Harlan,  after  stating  the  facts  in  the  foregoing 
language,  delivered  the  opinion  of  the  court. 

The  court  below  correctly  interpreted  the  decision  in  Prentice 
V.  Stearns,  113  U.  S.  435,  5  Sup.  Ct.  547,  as  holding  that  the 
deed  from  Armstrong  to  Prentice,  under  which  alone  the  latter 
can  assert  a  title  to  the  land  in  controversy,  was  an  instrument 
designed  to  convey  a  defined  tract  or  parcel  of  land,  not  any 
))ossible  interest  existing  in  Armstrong  under  the  treaty  with  the 
Chippewas,  the  selection  of  ButFalo,  and  the  ap[)ointment  that 
the  lands  selected  by  him  should  be  conveyed  to  Armstrong  and 
other  named  relatives. 

This  question  was  reargued  in  the  court  below,  in  the  present 
case,  in  the  light  of  additional  facts  supposed  to  have  been 
adduced. 

Mr.  Justice  Miller,  in  his  opinion  in  this  case,  said;  "  We 
remain  of  the  opinion  we  were  on  the  former  trial.     The  first 


SPECIFIC    DESCRIPTION    CONTROLS    GENERAL    DESCRIPTION.    703 

descriptive  clause  of  the  deed  from  Armstrong  to  Prentice  is  of 
11  tract  of  land  a  mile  square,  beginning  at  a  large  stone  or  rock, 
which,  as  a  matter  of  fact,  we  find  in  the  present  case  is  now 
identified,  and  was  well  known  at  the  time  the  deed  was  made. 
The  description  )iroceeds  with  the  points  of  the  comi)ass  one 
mile  east,  one  mile  north,  one  mile  west,  one  mile  south,  to  the 
place  of  beginning.  It  would  be  diflScult,  the  beginning  point 
being  well  ascertained,  to  imagine  that  Armstrong  intended  to 
convey  any  other  land,  or  any  other  interest  in  land,  or  interest 
in  any  other  land,  than  that  so  clearly  defined;  and,  if  that  de- 
scription is  to  stand  as  a  part  of  the  deed  made  by  Armstrong  to 
Prentice,  it  leaves  no  doubt  where  the  land  was,  and  there  is  no 
occasion  to  resort  to  any  inference  that  he  meant  any  other  land 
than  that.  It  is  now  found  as  a  fact  that  this  boundary  would 
include  a  surface  for  one-half  to  three-fourths  of  which  is  land 
and  the  remainder  is  water  of  Lake  Superior."     43  Fed.  270. 

The  specific  description  by  metes  and  bounds  of  the  land 
conveyed  by  the  Armstrong  deed  to  Prentice,  namely,  *'  one 
undivided  half  of  all  the  following  described  piece  or  parcel 
of  land,  situate  in  the  county  of  St.  Louis  and  territory 
of  Minnesota,  and  known  and  described  as  follows :  Beginning 
at  a  large  stone  or  rock  at  the  head  of  St.  Louis  River  bay, 
nearly  adjoining  Minnesota  point,  commencing  at  said  rock,  and 
running  east  one  mile,  north  one  mile,  west  one  mile,  south  one 
mile,  to  the  place  of  beginning," — does  not,  it  is  conceded, 
embrace  the  land  in  dispute.  Indeed,  the  plaintiff  insists,  on 
several  grounds,  that  that  description  should  be  rejected  alto- 
gether, as  inaccurate  and  mistaken;  and  he  is  driven  to  rest  his 
claim  of  title  to  the  lands  in  dispute  upon  the  clause  of  the  deed 
immediately  following  the  words  above  quoted,  namely,  *'  and 
being  the  land  set  off  to  the  Indian  chief  Buffalo,  at  the  Indian 
treaty  of  September  30,  1854,  and  was  afterwards  disposed  of 
by  said  Buffalo  to  Armstrong,  and  is  now  recorded  with  the 
government  documents." 

But  the  plaintiff,  although  compelled  to  rely  upon  the  words 
last  quoted,  insists  that  they  mean  what,  in  our  opinion,  is  not 
justified  by  a  fair  interpretation  of  them.  It  seems  entirely 
clear  that  the  words  in  the  clause  beginning  "  and  being  the 
land,"  etc.,  were  intended  to  describe  generally  what  had  been 
before  specifically  described  by  metes  and  bounds  ;  that  "  an<l 
being"  is  equivalent  to  *'  which  is,"  in  which  case  this  clause  of 
general  description — the  specific  description  by  metes  and 
bounds,  being  rejected  as  not  embracing  the  land  —  cannot,  it  is 
conccnlc'd,  be  regarded  as  an  independent  description  of  the 
subject  of  the  conveyance. 


704         THE  REQUISITES  AND  COMPONENT  PARTS  OP  A  DEED. 

It  is  said  that  the  deed  should  not  be  construed  as  intended  to 
convey  merely  a  specific  tract,  and  thereby  make  it  inoperative, 
because,  at  the  time  it  was  executed,  Armstrong  did  not  have 
any  interest  in  a  .s()ocific  tract  that  he  cf)uld  convey,  hut  only 
a  general  right,  under  the  Buffalo  document,  to  have  land  located 
and  patented  to  him  by  the  United  Slates.  Referring  to  the 
argument  made  by  counsel  in  Hup|)ort  of  this  view,  Mr.  Justice 
Miller  said:  *'  They  say  that  the  reference  to  the  land  set  off  to 
the  Indian  chief  Buffalo  at  the  treaty  of  1854  meant,  not  any 
definite  piece  of  land,  but  any  land  which  might  come  to  Bufftilo 
or  his  appointees,  of  whom  Armstrong  is  one,  by  the  future  pro- 
ceedings of  the  government  of  the  United  States  in  that  case  ; 
and  that,  no  matter  whore  such  land  was  found,  provided  it  was 
within  the  limits  of  the  land  granted  by  the  Cliippewa  treaty, 
then  the  deed  from  Armstrong  to  Prentice  was  intended  to  con- 
vey such  after-acquired  interests  which  were  patented  to  the 
parties  by  the  United  Stales.  We  do  not  see  anything  in  the 
whole  deed  or  transaction  between  Armstrong  and  Prentice  that 
points  to  or  indicates  any  sucli  construction  of  it.  Boih  clauses 
of  the  description  are  definite  as  to  the  land  conveyed,  and  treat 
it  as  a  piece  of  land  well  described,  well  known,  and  well  defined. 
Of  course,  any  man  endeavoring  to  ascertain  what  laud  was  con- 
veyed under  that  grant  would  suppose  that,  when  he  foimd  the 
stone  or  rock  which  we  now  as  a  matter  of  fact,  find  to  have  an 
existence,  and  can  be  well  identified,  he  had  bought  a  mile 
square,  according  to  the  points  of  the  compass,  the  southwest 
corner  of  which  commenced  at  that  rock.  Ho  would  not  suppose 
that  he  had  bought  something  that  might  be  substituted  in  lieu 
of  that  mile  square  by  future  proceedings  of  the  government  of 
the  United  States.  And  so  with  regard  to  the  other  description. 
Buffalo  had  made  his  selection,  had  described  the  land  which  he 
designed  to  go  by  that  treaty,  not  to  him,  but  to  his  rela- 
tives, whose  names  are  given;  and  it  was  an  undivided  half 
of  this  land  thus  selected  by  the  Buffalo  chief,  and  not 
other  land,  or  different  land  which  might  come  to  Arm- 
strong, that  he  conveyed,  and  intended  to  convey,  to  Pren- 
tice." 

After  distinguishing  this  case  from  Doe  v.  Wilson,  23  How. 
457,  and  Crews  v.  Burcham,  1  Black,  352,  Mr.  Justice  Miller 
proceeded:  "But,  in  the  case  before  us,  not  only  had  Buffalo 
made  his  selection,  and  designated  the  parties  to  whom  the  land 
should  go,  but  the  selection  had  dotiniteness  about  it,  to  a  certain 
extent.  It  was  a  thing  which  could  be  conveyed  specifically, 
and  which  Armstrong  undertook  to  convey  specifically.  It  is  not 
necessary  that  we  resort  to  the  supposition  that  Armstrong  was 


SPECIFIC  DESCRIPTION  CONTROLS  GENERAL  DESCRIPTION.       705 

talking  about  some  vague  and  uncertain  right  —  uncerttiin,  at 
least,  as  to  locality,  and  as  to  its  relation,  to  the  surveys  of  the 
United  States — which  he  was  intending  to  convey  to  Prentice, 
instead  of  the  definite  land  which  he  described,  or  attempted  to 
describe.  If  such  were  his  piiipose  in  this  conveyance,  it  is 
remarkable  that  he  did  not  say  so  in  the  very  few  words  neces- 
sary to  express  that  idea,  instead  of  resorting  to  two  distinct 
descriptive  clauses,  neither  of  which  had  that  idea  in  it,  one  of 
which  is  rejected  absolutely  by  the  plaintiff's  counsel  as  vvholly 
a  mistake,  and  the  other  is  too  vague  in  its  language  to  convey 
even  what  plaintiff  claimed  for  it.  We  are  not  able,  therefore, 
to  hold,  with  counsel  for  plaintiff,  that,  if  this  conveyance  does 
not  carry  the  title  to  any  lands  which  can  be  ascertained  by  that 
description  in  the  deed,  resort  can  be  had  to  the  alternative  that 
the  deed  was  intended  to  convey  any  land  that  might  ultimately 
come  to  Armstrong  under  the  treaty,  and  under  the  selection, 
and  under  the  assignment  to  Buffalo."     43  Fed.  276. 

We  are  entirely  satisfied  with  these  views.  It  results  that 
neither  the  description  by  metes  and  bounds,  nor  the  general 
description  of  the  lands  conveyed  by  the  deed  under  which  the 
plaintiff  claims,  is  sufficient  to  cover  the  lands  here  in  dispute. 

Another  matter  deserves  notice.  It  is  found  as  a  fact  that  if 
the  lines  of  the  course  called  for  as  east  and  west  in  the  deed  of 
Armstrong  to  Prentice,  under  which  the  plaintiff  asserts  title, 
were  exactly  reversed,  the  description  in  the  deed  would  include 
a  large  part  of  the  land  actually  selected  by  Buffalo  chief,  and 
also  included  in  the  patents  from  the  United  States.  But  this 
fact  is  immaterial,  for  it  is  found  that  if  the  course  were  reversed, 
as  suggested,  it  would  not  include  the  particular  land  here  in 
controversy. 

The  case,  then,  is  this:  Looking  into  the  deed  under  which 
the  plaintiff  claims  title,  for  the  purpose  of  ascertaining  the  in- 
tention of  the  parties,  we  find  there  a  specific  description,  by 
metes  and  bounds,  of  the  lands  conveyed,  followed  by  a  general 
description  which  must  be  held  to  have  been  introduced  for  the 
purpose  only  of  showing  the  grantor's  chain  of  title,  and  not  as 
an  independent  description  of  the  lands  so  conveyed.  As  neither 
description  is  sufficient  to  cover  the  lands  in  suit,  there  can  be 
no  recovery  by  the  plaintiff  in  this  action  of  ejectment,  whatever 
may  be  the  defect,  if  any,  in  the  title  of  the  defendants.  If 
this  were  a  suit  in  equity  to  compel  a  reformation  of  the  deed 
upon  the  ground  that,  by  mistake  of  the  parties,  it  did  not 
properly  describe  the  lands  intended  to  be  conveyed,  and  if  such 
a  suit  were  not  barred  by  time,  a  different  question  would  be 
presented  upon  the  merits. 

45 


706         THE    REQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

What  h:i8  becu  waid  rciulers  it  unnecessary  to  consider  whether 
the  deed  from  Armstrong  and  wife  to  Prentice  was  so  acknowl- 
edged and  certified  as  to  entitle  it,  under  the  hiws  of  Minnesota, 
to  recor(i  in  that  State,  and,  by  such  recoid,  become  legal  notice 
of  its  contents  to  Gibnan,  and  those  claiming  under  him. 

We  perceive  no  error  in  the  record,  to  the  prejudice  of  the 
plaintiff  in  error,  and  the  judgment  is  affirmed. 


Habendum  Clause,  When  it  Controls  the  Premises. 

Doren  v.  Gillum,  136  lud.  134;  35  N.  E.  1101. 

Dailey,  J.  This  was  an  action  begun  in  the  Jay  circuit  court 
by  the  appelhmt,  Emory  E.  Doren,  to  enjoin  the  sale  of  certain 
real  estate  by  the  appellee  Stephen  A.  D.  Gillum,  sheriff  of  Jay 
Count}',  on  an  execution  issued  on  a  judgment  obtained  by  the  ap- 
pellee Adelma  Lupton  against  Robert  E.  Rees,  Charles  Lord,  and 
William  H.Hubbard.  Such  proceedings  were  had  that  a  restraining 
order  was  granted  pending  litigation.  Bt  iefly  stated,  the  amended 
complaint  described  the  real  estate,  and  alleged  the  appellant  to 
be  the  owner  in  fee-simple,  and  in  the  actual  and  full  possession, 
of  the  same.  Also,  that  on  the  3d  day  of  February,  1891,  the 
appellee  Lupton  ordered  an  execution  issued  on  a  judgment  in 
his  favor  for  $416,  obtained  in  the  Jay  circuit  court  on  the  9lh 
day  of  January,  1885,  which  execution  was  issued  and  directed 
to  the  sheriflf  of  Jay  County,  lud.,  who  under  said  execution, 
levied  upon  the  real  estate  described,  and  threatened  and  was 
about  to  advertise  for  sale,  and  sell,  the  same  on  execution,  and 
would  do  so,  unless  restrained  l)y  the  order  of  the  court;  that 
William  H.  Hubbard  was  not,  before  the  rendition  of  said  judg- 
ment, nor  at  the  time,  nor  has  he  since  become,  the  owner  of 
said  real  estate;  that,  if  the  sale  of  said  tract  be  made,  it  will 
harass  and  annoy  the  appellant  by  litigation  growing  out  of  such 
sale,  and  will  work  irreparable  loss  and  injury  to  him  ;  that  such 
a  sale  would  cast  a  cloud  upon  his  title,  and  would  affect  the  value 
of  his  property  in  a  manner  not  susceptible  of  measurement  or 
redress  in  an  action  at  law ;  and  lie  prays  that  the  sale  be  enjoined. 
To  this  complaint,  each  of  the  appellees  filed  separate  demurrers, 
which  were  submitted  to  the  court,  and  overruled,  and  excep- 
tions duly  reserved  thereto,  whereupon  the  appellee  Gillum 
answered  by  general  denial,  and  the  appellee  Lupton  in  two 
paragraphs,  the  first  of  which  was  a  general  denial.  The  second 
paragraph  alleges  the  judgment  against  said  Rees,  Lord,  and 
Hubbard,  the  issuing  of  the  execution  thereon,  and  that  said 
Hubbard  was  then,  and  still  is,  the  owner  of  the  real  estate  de- 


WHEN    HABENDUM    CLAUSE    CONTROLS    THE    PREMISES.  707 

scribed,  having  acquired  title  thereto  by  deed  executed  on  the 
25th  day  of  September,  1882,  which  deed  is  in  the  words  and 
figures  following,  to  wit:  '*  Ti)is  indenture  witnesseth  that  Will- 
iam II.  Rush  and  Eliza  J.  Rush,  of  Jay  County,  in  the  State  of 
Indiana,  convey  and  warrant  to  Levi  Hubbard  and  Maigaret 
Hubl)ard,  of  Jay  County,  in  the  State  of  Indiana,  for  the  sum  of 
one  thousand  dollars,  the  following  real  estate  in  Jay  County,  in 
the  State  of  Indiana,  to  wit;  The  southwest  quarter  of  the  south- 
west quarter  of  section  twenty-six  (26),  township  twenty-three 
(23)  north,  of  range  twelve  (12)  east,  containing  forty  (40) 
acres,  more  or  less;  to  have  and  to  hold  the  same  during  their 
natural  lives,  and  each  of  their  natural  lives,  and  then  descend 
to  William  H.  Hubbard,  and  the  heirs  of  his  body.  In  witness 
whereof,  the  said  William  H.  Rush  and  Eliza  J.  Rush,  his  wife, 
have  hereunto  set  their  hands  and  seals  this  25th  day  of  Septem- 
ber, 1882.  William  H.  Rush.  Eliza  J.  Rush."  (Here  follows 
an  allegation  of  acknowledgment  and  recordation.)  The  answer 
further  avers  that  on  the  24th  day  of  May,  1890,  and  after  the 
death  of  the  grantee  Margaret  Hubbard,  the  appellant,  procured 
a  quitclaim  deed  from  Levi  Hubbard,  without  having  paid  any 
consideration  therefor,  and  with  full  knowledge  of  the  title 
thereto  of  William  H.  Hubbard,  and  of  the  judgment  of  said 
Lupton  ;  thut  the  appellant  purchased  the  land  at  a  sale  for 
taxes,  and  holds  a  deed  therefor  from  the  auditor  of  Jay  County, 
but  that  said  deed  is  illegal  and  void,  and  conveys  no  title,  be- 
cause said  land  was  sold  without  having  first  offered  the  life 
estate  then  thereon,  and  without  having  first  made  proper  effort 
to  collect  any  taxes  then  due  out  of  the  personal  property  then 
owned  by  the  said  Levi  Hubbard,  and  without  having  properly 
advertised  or  listed  said  land,  and  because  the  same  was  sold  for 
more  than  was  due  on  said  tract,  and  for  other  irregularities  and 
illegal  acts  mentioned  in  the  appraising,  listing,  advertising,  and 
sellmg  of  said  premises.  The  appellant,  Doren,  moved  the 
court  to  require  the  several  causes  of  defense  therein  separated 
into  paragraphs  and  numbered,  which  motion  was  overruled,  and 
an  exception  taken. 

The  first  error  assigned  by  appellant,  upon  which  he  seeks  a 
reversal  of  this  case,  is  in  the  overruling  of  this  motion,  and  in 
support  of  it  he  urges  duplicity  in  the  pleading.  No  question 
is  presented  under  this  assignment  of  error,  as  no  bill  of  excep- 
tions signed  by  the  judge  appears  in  the  record.  The  appellant 
then  filed  a  demurrer  to  this  second  paragraph  of  answer  for 
want  of  sufficient  facts,  which  was  overruled  by  the  court,  and 
exception  taken.  Thereupon  appellant  filed  a  reply  and  the  cause, 
being  at  issue,  was  submitted  to  the  court  for  trial.     The  court 


708       THE    REQUISITES    AND    COMPONENT   PARTS    OF    A    DEED. 

found  for  tlic  aj)i)ellees,  entered  a  decree  dissolving  the  restrain- 
ing Older  theretofore  entered,  and  rendered  judgment  against 
ap|)ellant  for  costs.  Appelhint  moved  for  a  new  trial,  on  four 
reasons  assigned,  which  motion  was  overruled  by  the  court,  and 
excepted  to  at  the  time.  Thereupon  appellant  prayed  an  appeal 
to  this  court,  which  was  granted. 

The  second  assignment  of  error,  that  "  the  court  erred  in  over- 
ruling plaintiff's  demurrer  to  the  second  paragraph  of  the  sepa- 
rate answer  of  the  defendant  Adelma  Lupton,"  raises  the  principal 
question  for  consideration  in  this  case,  because  it  involves  the 
construction  of  the  deed  from  Rush  and  wife  to  Levi  and  Mar- 
garet Hubbard.  It  is  urged  by  the  appellant  that  *'  by  the  prem- 
ises of  this  deed,  *  convey  and  warrant,'  title  in  fee  simple  is 
passed  as  effectually  as  by  a  grant  at  common  law,"  and  that 
♦'  the  habendum  totally  contradicts,  and  is  repugnant  to,  the 
estate  granted  in  the  premises,"  and  hence  "  that  the  premises 
govern,  and  the  habendum  is  void."  In  5  Amer.  &  Eng.  Enc. 
Law,  pp.  456,  457,  it  is  said:  "  The  term  '  premises  '  is  given  to 
all  that  part  of  the  deed  which  precedes  the  habendum  clause. 
The  habendum  and  tenendum  clause  is  that  which  follows  the 
words  *  to  have  and  to  hold.'  Originally, — that  is,  under 
the  feudal  system,  —  this  clause  defined  the  quantity  of 
interest  or  estate  which  the  grantee  is  to  have  in  the 
property  granted,  and  the  tenure  upon  or  under  which  it  was 
to  be  held.  Since  the  practical  abolition  of  the  various  feudal 
tenures,  the  only  object  of  the  clause  is  to  state  the  character  of 
the  grantee's  estate.  But,  although  the  words  of  limitation  usu- 
ally appear  in  the  habendum  as  an  independent  clause  of  the 
deed,  it  is  not  necessary  that  they  should,  if  they  appear  in  some 
other  part,  as  in  the  premises.  So  unimportant  is  the  haben- 
dum that,  if  it  is  hopelessly  repugnant  to  the  limitations  appear- 
ing in  the  premises,  it  will  be  ineffectual  to  control  the  terms  of 
the  premises.  But  if,  by  fair  construction,  the  premises  and 
habendum  may  be  reconciled  so  that  both  may  stand,  effect  will 
be  given  to  both."  It  is  claimed  by  the  appellant  that  the  word 
"  descend,"  in  the  deed,  is  clearly  a  word  of  limitation,  and  not 
of  purchase,  and,  taken  either  in  its  common  or  technical  sense, 
implies  an  estate  of  inheritance  to  be  taken  by  William  H.  Hub- 
bard as  heir,  and  that,  "  if  the  first  takers  take  only  a  life  estate, 
then  there  was  nothing  to  descend  to  William  H.  Hubbard  as 
"  heir  ;  "  leaving  the  implication  that  a  fee  was  given  Levi  and 
Margaret  Hubbard,  and  that  no  remainder  was  intended  to 
vest  in  William  H.  Hubbard  ;  or,  briefly  stated,  it  is  insisted 
that,  "  the  word  '  descend '  having  been  used,  no  remain- 
der    was     created."      An     investigation     of     the     authorities 


WHEN    HABENDUM    CLAUSE    CONTROLS   THE   TREMISES.  709 

does  not  enable  us  to  agree  with  the  appellant  in  his  con- 
tention. It  has  been  held  that  where,  in  a  conveyance,  the 
word  "  descent  "  was  used,  it  meant  the  same  as  "  go  to."  2 
Shars.  &  B.  Lead.  Cas.  Real  Prop.,  p.  273;  Halstead  v.  Hall,  60 
Ind.  209;  Tate  v.  Townsend,  61  Miss.  316;  Jones  v.  Crawley, 
68  Ga.  175;  Moore  v.  Weaver,  16  Gray,  305;  Borgner  v. 
Brown,  133  Ind.  398  ;  33  N.  E.  92.  The  premises  do  not  always 
control  the  construction.  Words  importing  a  greater  estate 
than  one  for  life  in  the  first  taker  may,  by  force  of  the  contest, 
be  so  limited  as  to  give  the  first  taker  a  life  estate  only, 
with  a  remainder  over.  Reeder  v.  Spearman,  6  Rich.  Eq. 
89;  Gillara  v.  Caldwell,  11  Rich.  Eq.  73.  The  estate  may 
be  limited  in  the  habendum,  although  not  mentioned  in  the 
premises  of  a  deed,  and  without  the  use  of  the  word  "re- 
mainder." Wager  v.  Wager,  1  Serg.  &  R.  374;  Wommack 
V.  Whitmore,  58  Mo.  448.  And  the  latter  part  of  a  deed  has 
been  allowed  to  control,  and  render  what  seemed  to  be  a  fee  a 
life  estate  in  the  first  taker.  Prior  v.  Quackenbush,  29  Ind. 
475.  The  argument  that,  if  a  remainder  was  created,  it  was  a 
contingent  one,  does  not  find  support  in  the  authorities.  David- 
son V.  Koehler,  76  Ind.,  on  page  409.  All  parts  of  a  deed 
should  be  given  due  force  and  effect.  "  The  premises  of  a  deed 
are  often  expressed  in  general  terms,  admitting  of  various  ex- 
planations in  a  subsequent  part  of  the  deed.  Such  explanations 
are  usually  found  in  the  habendum."  Carson  v.  McCaslin, 
60  Ind.  334;  Edwards  v.  Beall,  75  Ind.  401.  Words  deliber- 
ately put  in  a  deed,  and  inserted  there  for  a  purpose,  are  not  to 
be  lightly  considered,  or  arbitrarily  thrust  aside.  Mining  Co. 
V.  Beckleheimer,  102  Ind.  76;  IN.  E.  202.  Nor  do  we  think 
the  case  of  Taney  v.  Fahnley,  126  Ind.  88;  25  N.  E.  882,  lends 
appellant  any  support,  in  his  theory  of  a  fee  in  Levi  and  Mar- 
garet Hubbard.  In  that  case  there  are  no  words  whatever 
indicating  a  life  estate,  and  the  descent  referred  to  is  to  a  class, 
as  heirs,  and  providing  that  the  grantor  shall  be  included  in  the 
class,  as  such,  while  in  the  case  under  consideration  the  clause 
in  the  deed  granting  the  premises  to  Levi  Hubbard  and 
Margaret  Hubbard  "  to  have  and  to  hold  the  same  during 
their  natural  lives  and  each  of  their  natural  lives,"  defines 
an  estate  for  life  to  Levi  and  Margaret  Hubbard  ;  and  the 
expression,  "  then  to  descend  to  William  H.  Hubbard,  and 
the  heirs  of  his  body,"  clearly  refer  to  the  time  when  said 
William  shall  come  into  the  possession  of  the  estate,  and  the 
remainder  vested  in  him,  and  become  subject  to  levy  and  sale  at 
the  date  of  the  execution  of  the  deed  by  William  H.  and  Eliza 
J.  Rush.     The  deed  creates  a  remainder  interest  in  William  H. 


710       THK    KEQUISITES    AND    COMPONENT    PARTS    OF    A    DEED. 

Hubbard  by  purcluiso,  and  the  use  of  the  word  "  de-cond  "  will 
uol  be  allowed  to  defeat  or  destroy  the  clear  and  wcll-oxpressed 
ineau'msj;  of  the  deed. 

The  third  cause  assigned  in  ai)pcllant's  motion  for  a  new  (rial, 
that  "  the  decision  is  contrary  to  law,"  involves  the  .same  ques- 
hon.s  already  considered,  regarding  tbe  construction  of  the  deed, 
and  wo  will  not  repeat  what  we  have  heretofore  said  concerning  it. 

The  fourth  specification  in  ap{)ellant's  motion  is  that  the  court 
erred  in  excluding  the  following  evidence  offered  by  the  plaintilf: 
(  1 )  The  record  of  the  quitclaim  deed  from  Levi  Hubbard  to  the 
plaintiff,  conveying  the  real  estate  in  question,  and  sought  to  be 
sold  in  execution;  (2)  the  record  of  a  tax  deed  by  the  auditor 
of  Jay  County,  conveying  said  premises  to  the  plaintiff  ;  (3)  the 
reeei[)ts  for  taxes  paid  thereon  by  the  plaintitf  subsequent  to  the 
sale  for  taxes;  and  (4)  the  value  of  the  improvements  made 
upon  said  tract  by  plaintiff  since  the  execution  of  the  tax  deed 
by  the  auditor.  It  is  the  duty  of  the  life  tenant  to  pay,  and 
keep  down,  the  general  taxes  assessed  against  the  real  estate  of 
which  he  is  in  possession,  and  enjoys  the  rents  and  profits  ;  and 
if,  through  failure  to  perform  his  duty,  the  estate  in  remainder  is 
sold,  destroyed,  or  wasted,  he  is  required  to  make  the  loss  good. 
If,  through  the  failure  of  the  tenant  to  pay  the  taxes,  the  estate 
is  sold  and  conveyed  to  another,  beyond  the  power  of  the  re- 
mainder-man to  recover  it,  it  is,  as  to  him,  destroyed  and 
wasted,  and  the  inheritance  is  gone,  and  the  tenant  should  pay 
for  the  loss.  Clark  v.  Middlesworth,  82  lud.  240.  In  1  Shars. 
&  B.  Lead.  Cas.  Real  Prop.,  p.  209,  it  is  said:  "The 
tenant  for  life  must  also  pay  the  ordinary  taxes  upon  the 
land  held  by  hiu)  ;  and  if  he  neglect  or  refuse  to  pay  the 
taxes,  and  suffer  the  land  to  be  sold,  and  buy  it  in,  he 
will  not  be  allowed  to  set  up  the  tax  against  the  remainder- 
man or  reversioner,  for  that  would  be  taking  advantage  of  his 
own  wrong.  Patrick  v.  Sherwood,  4  Blatchf.  112.  In  Ohio,  a 
life  tenant  sufferino;  a  sale  of  his  hind  for  taxes  forfeits  his  life 
estate,  and  w  II  not  be  allowed  to  redeem  the  land  ;  "  citing  Mc- 
Millan V.  Robbins,  5  Ohio,  28.  But  these  questions  were  not 
involved  in  the  issues.  The  whole  question,  in  this  case,  turns 
np'in  the  construction  of  the  deed  from  William  H.  Rush  and 
wife  to  Margaret  and  Levi  Hubbard,  with  remainder  to  William 
H.  Hubbard,  heretofore  given  ;  and  as  the  latter  took,  by  virtue 
of  that  conveyance,  a  vested  interest  in  the  land,  it  became  and 
is  subject  to  the  lien  of  the  appellee  Lupton's  judgment,  and 
was  properly  levied  upon  by  the  sheriff.  There  is  no  avail- 
al)le  error  in  the  record,  and  the  judgment  of  the  court  below  is 
affirmed. 


DEED   OF   CONVEYANCE    RESERVED   FROM   OPERATION.         711 

Reservation  from  Operation  of  a  Deed  of  Conveyance. 

Gould  V.  Howe,  131  III.  490;  23  N.  E.  602. 

Appeal  from  circuit  court,  Marshall  County. 

Ejectment  by  Edward  L.  Gould  against  Charles  Howe  for  an 
alley  in  the  city  of  Wenona.  In  1855  the  Illinois  Central  Rail- 
road Company  platted  the  town  (now  city)  of  Wenona,  and  the 
land  in  suit  was  described  in  said  plat  as  an  alIe3^  The  |)Iat  was 
acknowledged  by  the  president  of  the  railroad  company,  May 
16,  1855,  before  a  notary  public.  Afterwards  the  company 
conveyed  to  Thomas  A.  Hill  land  in  which  this  alley  was  in- 
cluded. The  deed  reserved  "  streets  and  alleys  according  to 
recorded  plat  of  the  town  of  Wenona."  The  defendant's  title 
was  derived  from  Hill.  The  plaintiff  claimed  title  through  a 
quitclaim  deed  from  the  railroad  company  made  after  the  deed 
to  Hill.  The  alley  has  since  been  vacated.  Defendant  obtained 
judgment.     Plaintiff  appeals. 

ScHOLFiELD,  J.  Two  qucstions  only  are  presented  for  our 
decision  by  the  argument  made  upon  this  record:  (1)  Does  the 
plat  of  the  Illinoisj  Central  Railroad  Company  vest  the  fee  of  the 
streets  and  alleys  marked  thereon  in  the  corporation  of  Wenona? 
(2)  Do  the  words,  "reserving  streets  and  alleys  according  to 
recorded  plat  of  the  town  of  Wenona,"  in  the  deed  of  the  Illi- 
nois Central  Railroad  Company  to  Hill,  prevent  the  transfer  of 
the  fee  in  such  streets  and  alleys,  subject  to  the  easement  of  the 
public  therein  by  that  deed? 

1.  Bearing  in  mind  that  acknowledgments  of  instruments 
affecting  title  to,  or  interest  in,  realty  were  unknown  to  the 
common  law  and  are  purely  of  statutory  origin,  it  will  be  ob- 
vious that  whether,  in  a  given  case,  an  acknowledgment  is 
effective  depends  entirely  upon  whether  it  is  taken  and  certified 
in  the  manner  and  by  the  person  within  the  contemplation  of 
the  statute.  The  statute  in  force  when  this  plat  was  mnde  was 
the  Revision  of  1845.  By  that  revision  one  mode  is  provided 
f(ir  taking  acknowledgments  of  town  plats,  and  another  and 
different  mode  is  provided  for  taking  acknowdedgments  of 
deeds  and  other  instruments  for  the  conveyance  of  real  estate. 
The  former  are  to  be  acknowledged  before  "  a  justice  of 
the  supreme  court,  justice  of  a  circuit  court,  or  a  justice  of 
the  peace,  while  the  latter  are  to  be  acknowledged  before  "  any 
judge,  justice,  or  clerk  of  any  court  of  record  in  this  State 
having  a  seal,  any  mayor  of  a  city,  notary  public,  or  commis- 
sioner authorized  to  take  the  acknowledgment  of  deeds,  having 
seal,  or  a  justice  of  the  peace,"     See  section  16,  c.     24,  fiiul 


712       THE    REQUISITES    AND    COMrONENT    PARTS    OF    A    DEED. 

section  20,  c.  25,  Ilcv.  St.  1845;  1  Purple  St.  l.S5<>,  pp.  156, 
170;  Gross  St.  1«()8,  pp.  103,  11<S,  §§  1(5,  20.  It  may  Ix;  that 
there  is  nothing  in  tho  character  of  the  instruments  which  wouhl 
preclude  a  unifotin  system  of  acknowledgment  lor  all  ;  and  we 
mav  con(!cde  that  it  wouhl  therefore  have  l>een  comj)etont  for 
the  general  assembly  to  have  so  provided,  either  by  assigning 
that  duty  to  courts,  to  persons  exercising  5'?<f/s/-judicial  powers, 
or  to  persons  arbitrarily  selected  and  named  for  that  purpose, 
without  reference  to  any  official  position  ;  but  it  would  have  been 
equally  competent  to  have  dispensed  with  acknowledgments  al- 
too^ether,  and,  in  the  matter  of  town  [)lats,  to  have  provided  that 
the  simple  causing  of  the  plat  to  be  n)ade  and  lecoided  should 
ipso  facto  vest  tho  fee  of  the  streets  and  alleys  in  the  munici- 
pality, without  reference  to  any  acknowledgment  whatever.  But 
these  are  all  legislative  questions,  with  which  we  have  nothing 
todo  ;  it  being  our  province  solely  to  inquire,  whathas  the  general 
assembly  enacted  in  this  respect?  not,  why  has  it  enacted  it  ?  In 
the  enactments  referred  to  supra.,  the  general  assembly  did 
not  assume  to  vest  the  power  to  take  acknowledgments  in  per- 
sons exercising  the  same  classes  or  grades  of  powers  ;  for  there 
is  DO  more  dissimilarity  between  the  powers  exercised  by  any 
officers  under  our  government  than  between  those  exercised  by 
the  judges,  mayors,  notaries,  clerks,  commissioners,  and  others 
who  are  empowered  to  take  acknowledgments  of  deeds.  The 
enumerated  officers  are  empowered  to  take  acknowledgments  of 
deeds,  not  because  the  act  of  taking  acknowledgments  is  ger- 
mane to  any  particular  power  inhering  in  the  offices  they  hold, 
but  simply  and  only  because  the  general  assembly  has,  in  the 
exercise  of  plenary  legislative  authority  in  that  respect,  arbi- 
trarily designated  them  for  that  purpose,  just  as  it  has  siiice 
designated  masters  in  chancery,  and  might  have  designated 
aldermen  and  constables.  The  language  of  the  statute  in  rela- 
tion to  the  acknowledgment  of  plats,  to  which  we  have  referred, 
is  first  found  in  an  act  approved  January  4,  1825  (Compilation 
1830,  p.  184),  and  it  remained  unchanged  until  the  revision  of 
1874.  The  language  of  the  statute  in  relation  to  the  acknowl- 
edgment of  deeds  and  other  conveyances  of  real  estate  has, 
however,  often  been  changed  so  that  different  acknowledgments 
have  been  properly  taken  from  time  to  time,  before  per- 
sons who  had  no  authority  to  take  acknowledgments  at  prior 
times.  Thus,  by  the  act  in  relation  to  conveyances,  approved 
January  31,  1827  (Rev.  Laws  1827,  p.  98,  §  9),  deeds  and  other 
conveyances  of  real  estate  were  required  to  be  acknowledged 
before  "one  of  the  judges  of  the  supreme  or  circuit  court  of 
this    State,  or  before    one  of  the  clerks   of   the  circuit  court, 


DEED    OF    CONVEYANCE    KESERVED    FROM   OPERATION.        713 

*  *  *  or  before  one  of  the  justices  of  the  peace  of  the 
county;"  and  it  was  not  until  two  3'ears  after  that  statute  was 
in  force  that  the  Icgi-shiture  enacted,  by  an  amendment  approved 
January  22,  1829  (Laws  1829,  )).  24,  §  1),  that  notaries  public, 
mayors,  and  certain  other  designated  officers  should,  in  addition 
to  those  enumerated  therein,  be  empowered  to  take  acknowl- 
edgments. No  one  will  pretend  that  the  acknowledgment  of  a 
deed  before  a  notary  public  or  a  mayor,  taken  before  the  22d 
of  January,  1829,  could  have  had  any  validity  ;  and  this,  for  the 
plainly  obvious  reason  that  no  |)ower  to  take  acknowledgments 
was  conferred  upon  a  class  of  officers  to  which  they  belonged, 
nor  upon  them  by  specific  designation;  and  precisely  the  same 
is  to  be  said  of  the  acknowledgment  of  this  plat  before  a  notary 
public.  The  power  confessed  by  the  statute  in  relation  to  con- 
veyances does  not  extend  beyond*  the  class  of  instruments  which 
are  the  subject  of  that  statute  ;  and  the  statute  in  relation  to 
town  plats  neither  expressly  nor  by  necessary  implication  in- 
cludes notaries  public.  By  the  Revision  of  1874,  the  general 
assembly  has  provided  that  town  plats  are  to  be  "  acknowledged 
in  the  same  manner  that  deeds  of  land  are  required  to  be  acknowl- 
edged ;  "  but  this  is  palpably  a  radical  amendment  and  change  of 
the  prior  law,  and  it  has  no  retroactive  effect.  It  necessarily 
follows  that,  in  our  opinion,  the  acknowledgment  of  the  plat 
before  the  notary  was  a  nullity,  and  the  plat,  therefore,  did  not 
operate  to  vest  the  fee  of  the  streets  and  alleys  in  the  munici- 
pality. See,  also,  Gosselin  v.  Chicago,  103  111.  623  ;  Thomas  v. 
Eckard,  88  111.  593. 

2.  While  the  plat  was  not  a  conveyance  of  the  fee,  it  was 
evidence  tending  to  prove  a  common-law  dedication,  which  we 
have  held  vests  an  easement  in  the  streets  and  alleys  in  the 
municif)ality.  Railroad  Co.  v.  Hartley,  67  111.  439;  Maywood 
Co.  V.  Village  of  Maywood,  1 18  111.  61  ;  6  N.  E.  Rep.  866.  It  is 
often  difficult  to  distinguish  between  an  exception  and  a  reserva- 
tion in  a  deed,  and  the  words  *'  reserving"  or  "  excepting"  are 
not  conclusive  in  determining  which  is  intended.  The  character 
and  effect  of  the  provision  itself,  in  which  such  words  occur, 
must  determine  what  is  intended.  It  is  sufficient,  for  the 
present,  to  say  that  an  exception  in  a  deed  withholds  from  its 
operation  some  part  or  parcel  of  the  thing  which,  but  for  the 
exception,  would  pass,  by  the  general  description,  to  the  grantee, 
A  reservation  in  a  deed,  on  the  other  hand,  is  the  creation  of 
some  new  right  issuing  out  of  the  thing  granted,  and  which  did 
not  exist  before  as  an  independent  right  in  behalf  of  the  grantor, 
and  not  of  a  stranger.  Co.  Litt.  47a;  1  Shep.  Touch.  77, 
80;   2  Washb.   Real    Prop.    (2d    Ed.),    pp.    646,    693,    §    67; 


714       THE    RKQUISITES    AND  COMPONENT    PARTS    OF    A    DEED. 

Tied.  Real  Property,  §  843.  If  here  there  had  been  no  public 
easement  in  the  streets  and  alleys,  and  the  company  had 
desired  to  retain  for  its  servants  and  employees  a  private  way 
across  the  land  convoyed,  it  would  have  been  a  reservation; 
it  would  have  been  the  creation  of  a  new  ri*i;ht,  issuing  out  of 
the  thing  granted,  in  behalf  of  the  grantor.  But  the  streets  and 
alleys  were  already  in  existence.  The  municipality  had  an  ease- 
ment in  them  for  the  public.  The  land  occupied  l)y  them  was 
included  by  the  terms  of  the  deed  in  the  general  description  of 
the  pro[)erty  conveyed,  and  hence,  but  for  the  i)rovision  with- 
holding them  from  its  operation,  they  would  have  been  included 
in  the  grant.  Beach  v.  Miller,  51  111.  207.  The  language  of  the 
deed  could  only  be  held  to  withhold  the  fee  of  the  streets  and 
alleys  from  its  operation  upon  the  hypothesis  that,  "  according 
to  recorded  plat  of  town  of  Weuona,"  the  fee  of  the  streets  and 
alleys  is  vested  in  the  municipality,  for  that  is  the  measure  of 
what  is  withheld  from  the  operation  of  the  deed  ;  and  therefore, 
since  "  according  to  recorded  plat  of  town  of  Wenona  "  an  ease- 
ment only  in  the  soil  of  the  streets  and  alleys  is  vested  in  the 
municipality  for  the  use  of  the  public,  that  only  is  withheld  from 
the  operation  of  the  deed.  Nothing,  therefore,  was  retained  in 
the  railroad  company  which  could  subsequently  pass  by  its  quit- 
claim ;  and  when  the  alley  was  vacated  the  easement  was  ter- 
minated, and  there  was  nothing  to  revert  to  the  railroad  com- 
pany.    The  judgment  is  affirmed. 


Covenant  of  Seisin  Against  Incumbrances  When  Broken. 

Copeland  v.  McAdory,  100  Ala.  553;   13  So.  545. 

Stone,  C.  J.  The  action  was  commenced  against  the  appel- 
lant and  his  wife  to  recover  damages  for  alleged  breaches 
of  the  covenants  in  a  deed  of  bargain  and  sale  executed  by 
them  conveying  to  the  appellees  a  certain  lot  or  parcel  of 
land  in  the  city  of  Birmingham.  There  was  judgment  for 
the  wife  on  her  plea  of  coverture.  The  trial  was  had  on 
an  amended  comphiint  having  three  counts.  The  first  of  these 
alleges  a  breach  of  the  covenant  against  incumbrances.  The 
second  complains  of  an  alleged  breach  of  the  covenant  that 
the  grantors  had  good  right  to  convey.  The  third  alleges  a 
breach  of  the  general  covenant  to  warrant  arid  defend.  The 
defect  or  insufficiency  of  the  title  of  the  grantoi's,  alleged  in 
each  count,  is  that  a  part  of  the  premises  conveyed,  particularly 
described,  formed  a  part  of  a  public  street  or  avenue  of  the  city 
of  Birmingham,  having  been,  prior  to  the  execution  of  the  con- 


BREACH    OF   THE    COVKNANT    AGAINST    INCUiVIBRANCES.       715 

veyance,  dedicated  to  the  public  for  such  use  by  the  former 
owner,  the  Elyton  Laud  Couipauy,  wheu  mapping  and  laying 
out  the  city;  and  that  the  mayor  and  aldermen  of  the  city  had 
entered,  taking  possession  thereof,  and  dit-possessing  the  appel- 
lees. Demurrers  to  each  count  were  interposed,  assigning 
causes  which  are  not  very  clearly  expressed.  As  we  iuterpiet 
them,  the  defect  or  insuHiciency  in  each  count  charged  to  exist 
is  that  the  right  and  title  of  the  mayor  and  aldermen  is  not 
describetl  with  sufficient  certainty  or  particularity,  and  that 
it  is  not  shown  the  appellees  were  ousted  or  dispossessed  by 
legal  process.  The  demurrers  were  overruled,  and  the  order 
overruling  them  in  the  matter  of  the  first  assignment  of 
eiTor.  In  considering  the  siifiiciency  of  the  complaint,  we  are 
confined  to  the  causes  of  demurrer  assigned.  Though  either 
count  may  be  in  any  respect  insufficient,  if  not  subject  to  the 
objections  stated,  the  demurrer  was  properly  overruled.  Code, 
§  2690.  The  second  count  is  founded  on  an  alleged  breach  of 
the  covenant  of  good  right  to  convey  the  equivalent  of  a  cove- 
nant of  seisin.  In  declaring  for  a  breach  of  the  covenant, 
all  that  is  necessary  is  to  negative  the  words  of  the  covenant 
generally.  No  description  of  or  reference  to  the  outstanding  or 
permanent  title  is  necessary  ;  nor  is  it  necessary  to  aver  an  evic- 
tion or  ouster.  The  covenant  is  broken,  if  at  all,  as  soon  as  it 
is  made,  and  not  by  the  occurrence  of  any  future  event.  The 
grantor  is  presumed  to  know  the  estate  of  which  he  was  seised  ; 
the  fact  is  peculiarly  within  his  knowledge,  and  he  must  plead 
and  prove  it.  Rawle  Cov.  (3d  Ed.)  53;  Rickert  v.  Snyder,  9 
Wend.  421;  Anderson  v.  Knox,  20  Ala.  156.  Whether  the 
existence  of  a  highway  over  a  part  of  the  premises  conveyed  is 
a  breach  of  this  covenant  is  not  a  question  raised  by  the  demur- 
rer, and,  of  consequence,  is  not  now  before  us.  There  is  a 
marked  distinction  in  pleading  a  breach  of  the  covenant  of  seisin, 
or  of  good  right  to  convey  and  of  other  covenants.  It  is  not  suf- 
ficient, in  declaring  for  a  breach  of  the  other  covenants,  to  nega- 
tive merely  the  words  of  the  covenant.  The  paramount  title 
or  incumbrance,  the  existence  of  which  is  supposed  to  con- 
stitute a  breach,  must  be  stated.  But  it  is  not  necessary  nor 
advi.-able  to  enter  into  any  particular  description  of  such  incum- 
brance or  title.  The  statement  of  it  substantially  is  all  that  is 
lequisite.  Rawle  Cov.  125  e^  seq.  In  the  notes  to  2  Giccnl. 
Ev.,  §§  242-244,  the  form  of  a  count  for  a  breach  of  ihi;  cove- 
nant against  incumbrances,  of  quiet  enjoyment,  and  of  general 
warranty  will  be  found.  In  each  count  there  is  no  more  tlian 
the  averment  that  there  was  at  the  time  of  making  the  deed  an 
outstandmi?  lawful  liiiht  and  title,  and  in  whom  it  resided.     In 


710  THE  REQUISITES  AND  COMPONENT  PARTS  OF  A  DEED. 

esich  of  the  coiiiits  of  the  comphiint  in  which  it  was  necessary  to 
state  the  existence  of  an  incmnbrauce  or  of  a  paramount  title, 
that  which  is  relied  on  as  constituting  tlie  breach  of  the  covenant 
is  clearly  stated;  its  nature,  character,  and  origin  ;  and  in  this 
respect  the  demurrer  was  not  well  taken. 

The  covenant  of  (Vcedora  from  incunjbrances,  like  the  covenants 
of  seisin  and  of  good  and  lawful  right  to  convey,  is  a  covenant  in 
praesenli.  It  is  broken  as  soon  as  made  if  there  is  an  outstanding 
older  and  better  title,  or  an  incumbrance  dimini.shiiig  the  value 
or  enjoyment  of  the  land.  Anderson  v.  Knox,  20  Ala.  156;  An- 
drews V.  McCoy,  8  Ala.  920;  Clark  v.  Swift,  3  Mete.  (Mass.) 
.390.  An  eviction  or  dispossession  of  the  grantee  is  not  a  con- 
stituent element  of  tiie  breach.  It  is  the  defect  of  title  or  the 
burden  of  an  incumbrance  existing  when  the  conveyance  is  made 
which  works  the  breach.  It  is  said  by  Greenleaf :  "  The  cove- 
nant of  freedom  from  incumbrance  is  proved  to  have  been 
broken  by  any  evidence  showing  that  a  third  person  had  a  right 
to  or  an  interest  in  the  land  granted,  to  the  diminution  of  the 
value  of  the  land,  though  consistent  with  the  passing  of  the  fee 
by  the  deed  of  conveyance.  Therefore  a  public  highway  over 
the  land,  a  claim  of  dower,  a  private  right  of  way,  a  lien  by 
judgment  or  by  mortgage  made  by  the  grantor  to  the  grantee, 
or  any  mortgage  unless  it  is  one  which  the  covenantee  is  bound 
to  p:iy,  or  any  other  outstanding  older  and  better  title,  is  a 
breach  of  this  covenant."  2  Greenl.  Ev,,  §  247.  The  authori- 
ties generally  recognize  an  outstanding  easement  of  any  kind  as 
falling  within  the  covenant,  operating  its  breach.  Rawle  Gov. 
113  et  seq.;  Tied.  Real  Prop.,  §  850;  Huyck  v.  Andrews,  113 
N.  Y.  81 ;  20  N.  E.  Rep.  581.  The  definition  of  an  incumbrance 
expressed  by  Parsons,  C.  J.,  in  the  early  case  of  Prescott  v. 
Trueraan,  4  Mass,  630,  is  that  it  is  "  every  right  to  or  interest 
in  the  land  granted  to  the  diminution  of  the  value  of  the  land, 
but  consistent  with  the  passing  of  the  fee  by  the  conveyance," 
has  frequently  been  cited  and  approved.  An  easement  confer- 
ring upon  its  owner  an  interest  in  the  land,  the  right  to  some 
profit,  benefit,  dominion,  or  lawful  use  out  of  or  over  the  land, 
though  it  n)ay  be  consistent  with  the  passing  of  the  fee  by  the 
conveyance,  is  a  burden  upon  the  estate  granted,  diminishing 
the  full  measure  of  its  enjoyment.  There  is  some  conflict  in 
the  authorities  whether  the  existence  of  a  public  highway  over 
the  land  is  an  incumbiance,  and  a  breach  of  this  covenant.  In 
the  case  of  Kellogg  v.  Ingersoll,  2  Mass.  101,  an  action  for  a 
breach  of  the  covenant,  the  breach  assigned  was  the  existence 
*'  of  a  public  town  road  or  way,  duly  laid  out  by  the  town  of  A. 
for  the  use  of  all  its  inhabitants,"  and  it  was  held  the  breach 


BREACH  OF  Till-:  COVENANT  AGAINST  INCUMBRANCES.    717 

Aiis  well  assijriK'd  ;  tliut  tli(!  oxistcnco  of  tho  voiu]  was  an  iin;um- 
braiico.  Parsons,  C. I.,. said:  "  It  is  a  legal  obstruction  to  tho 
pui  chaser  to  exercise  that  dominion  over  the  hind  to  which  the 
owner  is  entitled.  An  inoninhrancci  of  tiiis  nature  may  be  a 
<'^reat  <lainaore  to  the  pnrcha-i'r,  or  tho  datnaore  may  be  very  in- 
considerable,  or  meiely  nominal.  The  amount  of  the  d.unage 
is  a  proper  subject  for  the  consideration  of  the  juiy  who  may 
assess  them,  but  it  cannot  affect  the  question  whether  a  put)ii(; 
town  road  is,  in  legal  conteujplation,  an  incumbrance  of  tho  land 
over  which  it  is  hud."  Though  tho  docti'ine  of  this  case  has 
been  denied  in  New  York,  Pennsylvania,  and  Wisconsin,  it  has 
been  adopted  in  all  the  New  England  States,  and  in  Indiana, 
Illinois,  Iowa,  and  Missouri.  Tied.  Real  Prop.,  §  853,  and 
notes.  In  Kellog  v.  Malin,  50  Mo.  496,  it  is  said:  "All  the 
authorities  concur  in  holding  that  an  easement  constitutes  an 
incumbrance.  If  a  person  acquires  the  fee  to  land  free  and 
unincumbered,  he  obtains  tho  exclusive  and  absolute  dominion 
over  it,  and  may  use,  enjoy,  and  ap[)ropriate  it  to  any  purpose 
he  may  see  fit ;  but  if  it  is  subject  to  an  easement  or  incumbiance 
it  is  not  free,  nor  can  he  enjoy  it  to  the  fullest  extent.  If  a  [)ub- 
lic  highway  or  a  railroad  track  run  over  it,  he  cannot  have  its 
undisturbed  enjoyment,  for  it  is  used  by  others  in  deHance  of  his 
will."  The  vendor  of  lauds  frames  the  covenants  of  the  convey- 
ance into  which  he  enters.  He  may  extend  or  limit  them  at 
pleasure,  or  he  may  decline  to  introduce  into  the  conveyance  any 
covenants  whatever,  limitirtg  the  grant  to  such  estate  or  interest 
only  as  he  may  have  in  the  land,  and  leaving  the  purchaser  to 
take  it  with  all  the  defects  of  title,  and  subject  to  all  the  incum- 
brances which  affect  or  bind  the  estate.  But  if  he  enters  into 
covenants  he  must  respond  for  all  damages  resulting,  if  the 
covenants  are  in  legal  contemplation  and  in  fact  untrue.  The 
existence  of  a  public  highway  is  a  burden  —  an  incumbrance  — 
diminishing  the  enjoyment  of  the  land,  sul)jecting  it  to  the  dom- 
inion and  use  of  the  public.  If  it  were  a  private  right  of  way,  all 
authorities  declare  that  it  would  be  an  incumbiance  and  a  breach 
of  the  covenant.  That  it  is  public  does  not  change  the  fact 
that  there  is  an  outstanding  right  to  the  use  and  to  dominion 
over  the  land,  which  may  continue  forever,  interrupting  its  quiet 
enjoyment.  The  covenant  of  quiet  enjoyment  and  of  warranty 
are  practically  identical  in  operation,  and  whatever  constitutes 
the  breach  of  the  one  covenant  is  a  breach  of  the  other.  Either 
extends  to  all  lawful  outstanding  adverse  claims  upon  the  prem- 
ises conveyed.  An  easement  materially  affecling  the  value, 
interfering  with  the  use  and  possession,  of  a  part  of  the  [)remises, 
is  a  breach  of  the  covenant.     Scriver  v.  Smith,  100  N.  Y.  471  ; 


7  IS       TIIR    REQUISITKS    AND    COMPONENT    PARTS    OF    A    DEED. 

3  N.  E.  Hep.  Cur>.  A  riij;ht  of  way,  public  or  private,  inciimlier- 
ing  a  [):iit  of  tlu^  premises,  is  a  hreacli  of  tlu;  covenant.  Rus-;  v. 
Steele,  40  Vt.  310;  LamI)  v.  D.infortli,  59  Me.  322;  Butt  v. 
Riffe,  78  Ky.  352.  An  eviction,  actual  or  eonstructive,  of  the 
whole  or  a  part  of  the  premises,  is  an  esscni  ial  con^titutMit  of 
the  breach.  But  it  is  not  intended  that  tliere  should  be  an  evic- 
tion by  legal  process.  If  there  is  an  hostile  assertion  of  an 
irresistible,  paramount  title,  the  grantee  may  yield  to  it,  not 
awaiting  suit  and  judgment.  If  he  yields,  it  is  at  his  peril,  and 
ho  takes  upon  himself,  in  an  action  for  a  breach  of  the  cove- 
nant, the  burden  of  proving  the  title  really  paramount.  Tied. 
Real.  Prop.,  §  855.  Assuming  the  truth  of  the  averments 
in  the  complaint,  as  must  be  done  on  demurrer,  the  paramount 
right  and  title  to  the  part  of  the  premises  conveyeil  which 
formed  a  part  of  the  sti'eet  or  avenue  —  the  paramount  light  to 
use  and  dominif)n  over  them -^— resides  in  the  mayor  and  alder- 
men, and  they  had  the  right  to  enter  and  take  possession.  It 
was  not  only  the  right  but  the  duty,  of  the  ap[)ellees  to  sur- 
render the  possession.  They  were  under  no  duty  to  the  appel- 
lant to  maintain  a  wrongful  possession,  subjecting  themselves  to 
be  treated  as  trespassers.  McGiry  v.  Hastings,  39  Cal.  3G0. 
The  result  of  the  views  we  have  expre-^sed  is  that  the  demurrer 
to  the  several  counts  of  the  complaint  for  the  causes  assigned 
were  properly  overruled. 

The  demurrer  to  the  two  special  pleas  filed  by  the  appellant 
do  not  appear  in  the  record.  When  such  demurrers  are  sus- 
tained, the  presumption  on  error  is  that  causes  of  demurrer  were 
specified,  and  covered  whatever  of  objection  or  insufficiency  may 
be  found  in  the  pleas.  The  fii  st  plea  purports  to  be  a  plea  of 
recoupment,  and  the  matter  of  recoupment  is  expenses  incurred 
by  the  appellant  in  the  employment  of  counsel  to  procure  the 
correction  of  the  misdescription  in  a  deed  executed  by  the 
appellees  conveying  to  the  appellant  a  lot  in  exchange  or  as  the 
consideration  for  the  lot  conveyed  by  him  to  the  appellees.  It 
would  scarcely  be  insi^^ted  that  in  a  sey)arate,  independent  action 
such  a  claim  or  demand  is  recoverable  ;  and  it  is  now  suffi- 
cient to  say  that  a  claim  or  demand  not  recoverable  in  a  separate 
independent  action  cannot  be  made  the  matter  of  a  plea  of 
recou[jment.  3  Sedg.  Dam.,  §  10(51.  The  second  plea  avers 
that  at  the  time  of  the  execution  of  the  conveyance  the  appellees 
hail  full  knowledge  of  the  claim  of  the  mayor  and  alderman  of 
the  city  of  Biiiningham,  and  are  therefore  estopped  from  a  recov- 
ery ;  but  knowledge  or  notice,  however  full,  of  an  incumbrance, 
or  of  a  paramount  title,  does  not  impair  the  right  of  recovery 
upon  covenants  of  warranty.     The  covenants  are  taken  for  pro- 


BREACH  OF  TIIK  COVENANT  OF  WARRANTY.        719 

tection  and  iiulcninitv  nirainst  known  and  nnknown  incumbrances 
or  defects  of  title,  tied.  Real  Prop.,  §  853;  Kawie  Cov.  128  et 
seq.;  Dunn  v.  White,  1  Ala,  (J45.  The  measure  of  damages  for 
a  total  breach  of  the  covenants  of  seisin  or  of  good  ri<:l>t  to 
convey  or  of  quiet  enjoyment  or  general  warranty  is  the  purchase 
money,  or  value  of  the  consideialion.  If  the  failure  of  the  title 
is  partial,  the  measure  of  damages  is  the  value  of  the  parcel  lost, 
measured  by  the  consideration,  or  the  value  at  the  time  of  the 
eviction.  Kingsbury  v.  Milner,  69  Ala.  596;  Bibb  v.  Freeman, 
59  Ala.  612;  2  Suth.  Dam.  288;  Mecklem  v.  Blake,  99  Amer. 
Dec.  78,  ndle;  Brooks  v.  Black  (Miss.),  8  South.  Rep.  332;  24 
Amer.  St.  Rep.  267,  note.  When,  as  in  this  case,  there  is  not 
a  failure  of  title,  the  fee  remaining  in  the  grantee,  but  a  part  of 
the  land  is  subject  to  a  perpetual  easement,  which  may  not  be 
removed  by  the  payment  of  money,  the  measure  of  damage  is 
the  depreciation  in  value  of  the  land  by  reason  of  the  incum- 
brance. 3  Sedg.  Dam.,  §  972;  Clark  v.  Ziegler,  78  Ala.  362, 
85  Ala.  154;  4  South.  Rep.  669.  Consequential  damages  are 
not  recoverable.  Nor  is  the  value  of  improvements  the  grantee 
may  have  made  after  the  purchase  an  element  of  damage.  If 
compensation  is  made  for  them,  as  has  been  properly  said,  it 
must  be  made  by  the  evictor.  Mecklem  v.  Blake,  99  Amer. 
Dec.  73,  note.  Theie  was  error  in  the  refusal  of  the  first, 
!<econd,  third,  and  fifth  charges  requested  by  the  appellant. 
There  was  no  error  in  the  refusal  of  the  fourth  and  sixth  charges 
requested.  The  appellees  were  under  no  duty  to  give  notice  to 
the  appellant  before  surrendering  possession  to  the  mayor  and 
aldermen,  if  their  right  and  title  was  paramount.  Having  sur- 
rendered without  suit,  as  has  already  been  said,  in  this  action, 
the  burden  proving  the  superiority  of  the  title  to  which  they 
yielded  rests  u[)on  the  a[)pellees.  They  are  not  bound  to  prove 
it  conclusively,  as  is  as&erted  in  the  sixth  instruction.  In  all 
civil  cases  the  measure  of  proof  is  that  which  produces  in  the 
minds  of  the  jury  a  reasonable  conviction.  The  other  matters 
assigned  as  error  will  not  arise  again,  and  a  consideration  of 
them  is  unnecessary.     Reversed  and  remanded. 


Breach  of  the   Covenant  of  Warranty. 

Eversole  v.  Early,  80  Iowa,  601;  44  N.  W.  897. 

Given,  J.  1.  Plaintiff  a>ks  to  recover  upon  the  ground  that 
the  fee-simple  title  of  Barke  and  his  grantees  was  paramount  to 
the  title  which  he  had  received  from  Early,  to  protect  himself 
and  his  grantee  against  which  he  was  compelled  to  purchase  said 


720        THE    REQUISITES    AND    COMPOXKNT    PARTS    OF    A    DEED. 

paramount  title,  to  his  (l.itiiago,  whicli  lie  asks  to  reeover  utult  r 
(Jefeiulant's  covenants  of  waininly  lo  him.  If  the  third  count 
states  as  facts  that  which  shows  that  tlio  Barke  title  was  not 
paramount  to  the  tax-litle  of  p];irly,  then  it  states  facts  consti- 
tuting a  defense.  According  to  said  count,  Barke's  title  w:is 
not  complete.  It  depended  upon  his  paying  the  $968.50 
within  a  certain  time,  a  failure  to  do  which  wouUl  defeat  his  title, 
and  render  the  tax-til  hi  i)aramount.  The  demurrer  should 
have  been  overruled.  It  is  contended  that  this  ruling  is  with- 
out prejudice,  as,  under  the  issues  joined  by  the  other  counts, 
plaintiff  had  to  prove  that  the  title  bought  in  by  him  was  para- 
mount. This  is  true,  but  defendants  pleaded  facts  that 
would  show  upon  what  the  question  of  sujjeriority  of  title  rested. 
Without  this  count,  there  was  nothing  in  the  pleading  to  even 
suggest  the  real  i)oint  in  controversy. 

2.  The  point  in  controversy  was  as  to  which  of  these  titles 
was  paramount  at  the  commencement  of  this  action.  If  the 
Barke  title  was  paramount,  we  have  no  doubt  as  to  plaintiff's 
right  to  protect  himself  by  purchasing  it.  The  old  rule,  that 
there  was  no  eviction  until  a(;tual  ouster,  does  not  prevail.  It  is 
sufficient  that  the  holder  of  the  paramount  title  is  able  to  assert 
it  successfully.  Thomas  v.  Stickle,  32  Iowa,  71;  Funk  v. 
Cresswell,  5  Iowa,  62. 

There  is  no  conflict  in  the  evidence,  and  the  only  fact  appear- 
ing therefrom,  in  addition  to  that  shown  by  the  pleadings,  is  that, 
the  case  of  Barke  v.  Early  et  al.  being  appealed,  a  stipulation  was 
entered  into  by  which  the  time  for  payment  of  the  $968.50,  and 
for  filing  a  petition  for  improvements,  was  extended  to  a  later 
date  than  that  named  in  the  decree,  being  a  date  later  than  that 
on  which  Barke  conveyed  to  Mason  and  Thompson,  and  they 
to  the  plaintiff.  The  decree  in  Barke  v.  Early  et  al.  explicitly 
provides  that,  in  case  plaintiff  fails  to  pay  the  $968.50,  "the 
title  to  said  land  shall  be  quieted  in  defendants."  During  the 
time  allowed  for  the  payment,  it  could  not  be  said  that  either  title 
was  paramount  as  that  depended  upon  the  payment  or  failure 
to  pay.  It  was  during  this  time  that  Barke  conveyed  to  Ma.^on 
and  Thompson,  and  they  to  the  plaintiff.  Hence  it  is  not  true 
that  the  plaintiff  purchased  a  paramount  title. 

Appellee  contends  that,  as  the  patent  title  could  have  been 
perfected  and  enforced  at  the  time  plaintiff  purchased  it,  it  was 
the  paramount  title.  In  Thomas  v.  Strickle,  supray  the  court 
say:  **  Could  the  grantor  of  Pitcher  have  successfully  maintained 
an  action  against  the  plaintiff  for  the  recovery  of  the  land  in 
dispute  at  the  time  Pitcher  purchased  in  their  titles?"  Adapt- 
ing the  inquiry  to  this   case,  we  ask,  was  Barke,  or  Mason  and 


EXCEPTIONS    TO    COVENANTS    OF   TITLE.  721 

Thomas,  entitled  to  a  writ  for  possession  under  the  decree  in 
Barke  v.  Early  et  al.  at  the  time  phiintiff  purchased  in  their 
title?  Clearly  not,  without  first  paying  the  $968.50.  Without 
this  payment,  they  were  not  in  position  to  assert  the  [)atent  title 
successfully.  Our  conclusion  is  that  the  court  erred  in  sustain- 
ing the  demurrer,  and  in  rendering  judgment  for  the  plaintiff, 
:ind  that  judgment  should  be  for  the  defendants  for  costs.  This 
view  of  the  case  renders  it  unnecessary  to  notice  the  other  ques- 
tions presented.     Reversed. 


Exceptions  to  Covenants  of   Title. 

King  V.  Kilbride,  58  Conn.  109;   19  A.  519. 

Andrews,  C.  J.  These  are  two  actions,  between  the  same 
parties,  brought  on  sep;irate  mortgages,  and  each  claiming  a 
foreclosure  and  the  possession  of  the  same  land.  It  appenrs  that 
on  the  1st  day  of  Juno,  1887,  the  plaintiff  owned  two  tracts  of 
land,  —  one  containing  ten  acres,  and  the  other,  his  homestead, 
containing  one  acie.  On  that  day  he  mortgngod  both  pieces  to 
Thomas  A.  Nelson,  to  secure  his  note  for  $1,100,  payable  to 
said  Nelson  or  order,  on  demand,  with  interest.  On  the  29th 
day  of  the  same  month  he  sold  and  convej'ed  the  ten-acre  piece 
to  Williiira  B.  Kilbride  by  a  deed  in  which  the  covenant  against 
incumbrances  and  the  covenant  of  warranty  were  as  follovvs  : 
"And  that  the  same  is  free  from  all  incumbrances  whatsoever, 
except  a  certain  mortgage  to  Thomas  A.  Nelson,  dated  June  1st, 
1887,  for  $1,100.  And  furthermore,  I,  the  said  grantor,"  do  by 
these  presents  bind  myself  and  my  heirs  forever  to  warrant  and 
defend  the  above  gianted  and  bargained  premises  to  him,  the 
said  grantee,  his  heirs  and  assigns,  against  all  claims  and  de- 
mands whatsoever."  On  the  same  day  Kilbiide  mortgaged  the 
same  land  to  the  plaintiff,  to  secure  the  sum  of  $1,500  by  a  deed 
in  which  the  covenants  were  identical  with  the  covenants  in  the 
plaintiff's  deed  to  him.  Kilbride  orally  agreed  to  assume  and 
pay  the  note  to  Mr.  Nelson  as  a  part  of  the  payment  for  the 
land.  He  went  into  immediate  possession  of  the  land  so  con- 
veyed to  him,  and  on  the  15th  day  of  August  following  con- 
veyed a  portion  of  it  to  the  Fountain  Water  Company  by  a  deed 
containing  all  the  covenants,  without  any  exception.  All  of 
these  deeds  were  put  upon  record  at  once.  It  is  found  that 
the  water  company  had  no  notice,  actual  or  constructive,  of 
the  oral  agreement  by  Kilbride  to  pay  the  Nelson  mort- 
gage, except  so  far  as  the  recording  of  the  deeds  is  such 
notice;   and  it  is   also  found  that  the  water  company  took  its 

46 


722       THE    REQUISITES    AND    COMPONENT    PARTS    OF    A   DEED. 

deed  in  good  faith,  and  paid  full  value  for  its  land.  The  plain- 
tiff has  reniainod  ever  since  the  owner  and  in  possession  of  the 
homestead.  Kilbride  proved  to  be  insolvent,  and  left  t  he  prem- 
ises ;  and  the  plaintiff,  on  the  27tli  day  of  Octobor  of  the  same 
year,  in  order  to  protect  his  secf)nd  mortgaije  interest  in  the  ten- 
acre  tract,  purchased  of  Mr.  Nelson  tiie  note  and  mortgage  which 
ho  had  previously  given  to  him,  and  Mr.  Nelson  thereupon  trans- 
ferred :ind  assigned  to  the  plaintitf,  by  a  proper  release  deed,  all 
his  right,  title,  and  interest  in  the  note  and  mortgage  ;  and  the 
same  are  now  the  proj)erty  of  the  plaintiff.  The  first  action  is 
brought  by  the  plaintiff  as  assignee  and  holder  of  his  own  note 
to  Mr.  Nelson,  and  in  the  comi)laint  he  claims  a  foreclosure  of 
the  ten-acre  piece,  with  [)ossession  of  the  same,  unless  the  water 
company  or  Kilbride  shall  pay  the  whole  amount  due  on  that 
note.  The  defense  in  this  action  sets  up,  among  other  things, 
the  covenant  of  warranty  contained  in  the  plaintiff's  deed  to  Kil- 
bride. The  reply  to  the  defense  is  a  denial.  The  judgment 
apportions  the  debt  between  the  two  pieces  of  land  mortgaged 
by  the  plaintiff  to  Mr.  Nelson  according  to  their  value,  and 
decrees  a  foreclosure  of  the  ten-acre  piece  unless  the  defendants, 
or  one  of  them,  shall  pay  the  sum  of  $556.20,  and  grants  exe- 
cution in  ejectment  if  the  money  is  not  paid  within  the  time 
limited.  From  this  judgment  the  plaintiff  and  the  Fountain 
Water  Company  both  appeal.  The  plaintiff's  reasons  of  appeal 
are  that  the  court  erred  in  not  requiring  the  defendant  to  pay 
the  whole  of  the  Nelson  note.  The  second  and  third  reasons  of 
appeal  of  the  water  company  are,  in  substance,  that  the  court 
erred  in  holding  that  the  plaintiff  was  entitled  to  maintain  the 
suit  notwithstanding  his  covenant  of  warranty. 

It  appears  from  the  finding  that  the  plaintiff  did  make  the 
covenant  of  warranty  as  alleged  by  the  defendants,  and  as 
appears  by  his  deed,  portions  of  which  are  recited  above.  The 
covenant  of  warranty  is  a  contract  by  which  the  grantor  of  land 
undertakes  to  protect  the  land  granted  from  all  lawful  claims  and 
demands  existing  at  the  time  of  the  grant,  and  the  contract  is 
made  not  only  with  his  immediate  gi'antee,but  with  whomsoever 
may  become  the  owner  of  the  land  by  a  title  derived  through  the 
irrantee.  Booth  v.  Starr,  1  Conn.  144;  Mitchell  v.  Warner,  5 
Conn.  498;  Rawle  Cov.  (4th  Ed.)  334;  3  Washb.  Eeal  Prop. 
(4th  Ed.)  466;  2Sugd.  Vend.  (Perkins'  Ed.)  240.  It  is  not  nec- 
essarily an  undertaking  that  there  is  no  incumbrance  on  the  land 
at  the  time,  but  it  is  an  undertaking  that  the  purchaser  and  his 
assigns  shall  at  all  times  enjoy  the  land  free  from  all  such  incum- 
brances. Williams  v.  Wetherbee,  1  Aiken,  233;  Rawle  Cov.  (4th 
Ed. )  215  ;  W^hitney  v.  Dinsmore,  6  Cush.  124 ;  Russ  v.  Steele,  40 


EXCEPTIONS    TO    COVENANTS  OF   TITLE.  723 

Vt.  310.  Of  this  covenant,  any  act  tantamount  to  an  eviction 
of  the  grantor  would  be  a  breach  and  subject  the  grantor  to 
damages,  as  if  the  grantee  should  upon  demand  yield  the  posses- 
sion to  one  having  a  better  title  (Sterling  v.  Pect,  14  Conn.  245) 
or  surrender  to  a  mortgagee  by  a  })rior  deed  (Hamilton  v.  Cutts, 
4  Mass.  349;  S[)ra,i:ue  v.  Baker,  17  Ma^^s.  58(5).  A  judgment  in 
ejectment  wouUI  clearly  be  such  an  act.  The  judgment  of  fore- 
closure and  ejectment  requires  of  the  defendants  a  payment  of 
money  to  their  own  grantor,  and,  upon  their  failure  to  do  so, 
authorizes  him  to  evict  them;  that  is,  to  do  the  very  act  which 
he  has  covenanted  with  them  shall  not  be  done  by  any  one.  Such 
a  judgment  must  be  erroneous.  And  this  judgment  is  erroneous 
unless  there  is  in  the  case  something  by  which  the  plaintiff  is 
relieved  from  the  obligation  of  his  warranty.  Is  there  any  such 
thing?  So  far  as  the  water  com|)any  is  concerned,  the  oral 
agreement  by  Kilbride  to  pay  the  Nelson  note  may  be  hiid  out 
of  the  case.  It  is  found  that  the  company  had  no  notice  of  that 
agreement,  except  so  far  as  the  record  of  the  deed  is  actual  or 
constructive  notice.  The  record  disclosed  an  express  covenant 
by  the  plaintiff  to  protect  the  defendants  in  their  possession  of 
the  land  against  all  claims  and  demands  whatsoever.  When 
there  is  an  express  contract  in  writing  res[)ecting  any  matter, 
there  can  never  be  an  implied  one  in  addition  to  it.  Brown  v. 
Fales,  139  Mass.  21.  Still  less  can  there  be  any  implication 
contraiy  to  the  writing.  Burncs  v.  Scott,  117  U.  S.  582  ;  6  Sup. 
Ct.  Rep.  805  ;  Allen  v.  Rundle,  50  Conn.  9. 

It  is  claimed  by  the  plaintiff  that  the  Nelson  mortgage  was 
excepted  out  of  the  covenant  of  warranty  in  his  deed  to  Kilbride; 
that  the  exce[)tion  of  it  from  the  covenant  against  incumbrances 
ought  to  be  construed  as  an  exception  of  it  from  the  covenant  of 
warranty.  This  is  really  an  argument  the  other  way.  That  an 
exception  was  made  from  one  covenant  in  a  deed  is  an  argument 
that  no  exception  was  intended  from  any  other.  It  shows  that 
the  attention  of  the  grantor  was  called  to  the  matter  of  making 
exceptions,  and  that,  presumably,  he  made  all  the  exceptions  he 
desired  to.  The  principle  applicable  is  found  in  the  maxim  that 
the  express  mention  of  one  person  or  thing  is  the  exclusion  of 
others.  Besides,  these  covenants  are  distinct,  and  have  refer- 
ence to  different  kinds  of  liability.  A  man  may  not  choose  to 
guaranty  his  title  generally,  and  yet  may  readily  undertake  that 
his  grantee  shall  not  be  disturbed.  2  Sugd.  Vend.  (Perkins' 
Ed.)  281  ;  Howell  v.  Richards,  11  East,  633,  643;  Estabrook  v. 
Smith,  6  Gray,  572. 

It  is  fur.ther  urged  that  the  covenant  of  warranty  in  Kilbride's 
mortgage  deed  to  the  plaintiff  operates  in  some  way  to  prevent 


724       THE    REQUISITES    AND    COMPONENT   PARTS    OF    A    DEED. 

the  water  compiuij  from  taking  anything  under  llie  pluiiiliff  s 
covenant  of  warranty  in  his  deed  to  Kilbride.  IIow  it  lias  this) 
effect  is  not  shown.  The  water  co.-npany  is  not  in  privity  with 
either  of  the  parties  as  to  that  covenant.  That  is  a  matter  be- 
tween other  persons,  by  which  it  can  neither  be  harmed  nor 
helped.  Certainly,  the  phiintiff  cannot  be  discharged  from  his 
covenant  to  the  water  company  because  some  one  else  has  war- 
ranted the  same  land  to  him. 

The  equitable  doctrine  of  notice,  so  strongly  urged,  and 
apparently  so  much  relied  on,  by  the  plaintiff,  seems  to  us  to 
have  no  application  in  the  case.  It  is  not  a  question  here  of 
notice,  but  whether  or  not  the  plaintiff  shall  keep  his  covenant, 
It  cannot  be  denied  that  the  water  company  had  notice  that  the 
Nelson  mortgage  covered  the  10-acrc  piece  of  land.  It  had 
notice  of  everything  which  appealed  on  the  record.  By  the 
same  record  from  which  the  company  derived  such  notice,  it 
learned  that  the  plaintiff  had  covenanted  to  warrant  and  defend 
that  very  piece  of  land  from  all  claims  and  demands,  not  except- 
ing the  Nelson  mortgage.  If  there  was  any  defect  or  nncer- 
tainty  in  the  notice  which  the  record  gave,  it  was  because  the 
plaintiff  was  himself  wanting  in  care,  in  not  making  his  deeds 
more  specific.  He  is  invoking  the  doctrine  of  notice.  He  ought 
not  to  expect  others  to  obtain  niore  knowledge  from  his  deeds 
than  he  put  into  them.  He  certainly  cannot  take  any  advantage 
I'rom  his  own  omissions.  He  is  the  one  to  be  bound  by  the 
notice  given,  rather  than  the  water  company  by  the  notice  re- 
ceived, if  there  is  any  difference;  especially  as  it  is  more  than 
likely  that  the  water  company  bought  its  land  relying  on  his 
warranty,  and  upon  his  ability,  as  well  as  on  his  willingness,  to 
fulfill  it.  There  is  error  in  the  judgment,  and  it  is  reversed  so 
far  as  it  is  against  the  Fountain  Water  Company. 

In  the  second  suit,  a  foreclosure  and  the  possession  of  the  same 
10-acre  piece  is  claimed,  unless  the  defendants,  or  one  of  them, 
shall  pay  the  installments  due  on  Kilbride's  note  to  the  plaintiff, 
and  secured  by  his  mortgage  deed  of  the  29th  day  of  June,  1887, 
The  court  ascertained  the  amount  due  on  the  note  the  day  judg- 
ment was  rendered  to  be  $46.44,  and  decreed  a  foreclosuie 
unless  the  same  was  paid,  together  with  a  judgment  in  eject- 
ment, to  be  enforced  on  failure  of  payment  at  the  expiration  of 
the  time  limited.  The  water  company  appealed  from  the  judg- 
ment on  the  ground  that  the  indebtedness  sought  to  be  seemed 
by  the  mortgage  was  not  sufficiently  described  in  it.  We  think 
there  is  no  error.  The  judgment  in  this  case  is  fully  sustained 
by  the  reasoning  in  the  very  recent  case  of  Winchell  v.  Coney, 
54  Conn.  24;   5  Atl.  Rep.  354,  which  is  applicable  to  this  case; 


WHO  CAN  MAINTAIN  ACTION  FOR  BREACH  OF    COVENANTS.       725 

reasoning  which  we  have  no  need  to  repeat,  and  no  disposition 
to  change.     In  this  opinion  the  other  judges  concurred. 


Who  Can  Maintain  Action  for  Breach  of   Covenants  of  Title. 

Allen  V.  Kennedy,  91  Mo.  324;  2  S.  W,  142. 

Black,  J.  On  the  fifth  May,  1875,  the  defendant  con- 
veyed the  40  acres  of  land  in  question  to  Patterson  by  a  deed 
containing  the  statutory  words  "grant,  bargain,  and  sell,"  and 
also  u  covenant  of  general  warranty.  On  the  twelfth  Septem- 
ber, 1878,  Patterson,  by  a  like  deed,  conveyed  the  same  land  to 
plaintitt'.  Plaintiff  htings  this  suit  for  damages  on  the  cove- 
nants in  the  deed  to  Patterson. 

1.  There  is  a  question  made  as  to  whether  the  petition  de- 
clares on  the  covenant  of  seizin  only,  or  on  that  and  the  cove- 
nant of  warranty.  The  petition  is  very  caielessly  prepared,  but 
we  think  it  shows  a  purpose  to  declare  on  both.  As  the  case 
will  be  remanded,  the  plaintiff  can  amend  so  as  to  bring  both 
covenants  fully  on  the  record  proper,  and  we  shall  treat  the 
case  as  if  such  an  amendment  were  made. 

2.  The  plaintiff  i»ut  in  evidence  the  two  deeds  before  men- 
tioned, and  showed  that  the  land  was  a  part  of  the  swamj)  lands 
of  Chariton  Couniy,  and  that  Kiddle  was  the  owner  by  deeds  from 
and  through  the  county.  He  testifies  that  after  he  bought  the 
land  he  found  defendant  had  no  title,  and,  on  further  inquiry, 
found  that  Riddle  had  taken  possession  long  before  plaintiff 
purchased  the  same.  The  plaintiff  concedes  that  the  full 
measure  of  his  damages  is  the  amount  he  paid,  with  interest. 
For  proof  of  damages,  the  plaintiff  relies  alone  on  the  recital  of 
$350  consideration  paid  by  him  in  his  deed  from  Patterson  ;  and 
the  question  is  whether  this  made  out  a  prima  facie  case.  As  to 
the  parties  to  a  dem],  the  consideration  clause  \6  prima  facie  ev- 
idence, but  it  has  the  force  and  effect  only  of  a  receipt,  and  is 
open  to  explanation  and  contradiction,  not  for  the  pur[)Ose  of 
defeating  the  deed  as  a  conveyance,  but  for  the  purpose  of 
showing  the  true  consideration.  Fontaine  v.  Boatmen's  Sav. 
Inst.,  57  Mo.  552;  Wood  v.  Broadley,  76  Mo.  33.  Generally, 
however,  the  recital  in  the  consideration  clause  is  not  evi- 
dence of  the  amount  paid,  or  the  value  of  the  premises,  as  to 
third  persons.  Rose  v.  Taunton,  119  Mass.  100.  We  have  held 
that  the  recital  of  the  place  of  residence  of  the  grantee  in  a  deed 
is  not  evidence  of  the  fact  in  his  own  favor.  Fine  v.  St.  Louis 
Pub.  Schools,  30  Mo.  166.  The  question  arose  in  a  foreclosure 
suit  in  a  case  decided  by  the  Supreme  Court  of  Ohio,  and  reported 


72()       THE    REQUISITKS    AM)    COMPONENT    PARTS    OF    A    DEED. 

in  1  N.  E.  Rej).  52)^.  There  H.  ^^ol(I  llio  proijerly,  and  by  liis 
contract  :ic;rco(l  to  make  a  deed  upon  paymi-nt  of  tlie  |)iuclia>se 
money.  lie  tlu-n  nuide  the  nioitgi<^e  on  ilio  same  priMuises. 
Thereafter  the  purchaser  assigned  hi.s  contract,  and  the  succes- 
sive assignees  made  divers  payments.  He  then  n^ade  a  deed  to 
the  last  assignee,  leciting  |)ayraent  in  full,  and  it  was  held  this 
recital  was  not  evidence  of  })aytnent  in  full,  as  again>tth<'.  nioii- 
gagee.  A  substantial  issue  in  this  case  was,  how  much  did  Allen 
pay,  ami  the  burden  of  the  proof  was  ui)on  the  plaintiff.  The 
statement  of  the  amount  paid  in  the  deed  is  no  more  than  the 
declaration  of  Patterson.  Kennedy  is  no  party  to  that  deed, 
claims  nothing  under  it,  and  we  must  hold  there  was  a  failur>i  of 
proof.  Where  the  ccmtest  is  between  a  prior  unrecorded  deed 
and  a  subsequent  recordiid  deed,  tlie  question  is  whether  the 
holder  under  the  recorded  deed  puichased  in  good  faitii  for  value, 
and  without  notice.  The  deed  there  may  well  be  regarded  as 
giving  the  grantee  a  prima  facie  standing  in  court,  but  we  ex- 
I)iess  no  opinion  here  in  tliat  class  of  ca*es  ;  the  issue  there  is 
unlike  the  present  one. 

3.  As  to  the  covenant  of  seisin  of  an  indefeasible  estate  in  fee- 
simple,  the  claim  is  that  this  covenant,  if  brt)ken  at  all,  is  always 
brok<Mi  when  made,  and  does  not  run  with  the  laud.  Whatever 
may  be  the  rule  elsewhere,  witli  us  it  is  more  than  a  covenant  in 
the  piesent  tense.  It  is  rather  a  covenant  of  indemnity,  and 
it  has  often  been  held  that  it  runs  with  the  land,  to  the  extent 
that  if  the  covenantee  takes  any  estate,  however  defeasible, 
or  if  possession  accompanies  the  deed,  though  no  title  pass, 
yet,  in  either  event,  this  covenant  runs  with  the  land 
and  inures  to  the  subsequent  grantee  ui)on  whom  the  loss 
falls.  Dickson  v.  Desire,  23  Mo.  151  ;  Chambers  v.  Smith,  Id. 
174;  Magwire  v.  Riggin,  44  Mo.  512;  Jones  v.  Whitsett,  79 
Mo.  188. 

4.  Both  covenants  in  the  Kennedy  deed  were  broken  before 
the  plaintiff  purchased;  for  Riddle,  the  owner  of  the  title,  had 
taken  possession  under  it,  and  Patterson  was  without  title  or 
possession.  On  this  state  of  the  case,  the  contention  of  the 
defendant  is  that  covenants  only  run  with  the  land  until  breach; 
that  they  then  become  choses  in  actit)n,  which  cannot  be  assigned. 
Many  authorities  do  hold  that  choses  in  action  cannot  be  assigned 
so  as  to  enable  the  assignee  to  sue  in  his  own  name  at  law,  but 
that  is  not  the  law  of  this  State.  Damages  arising  from  the 
breach  of  the  covenants  in  a  deed  may  be  assigned,  and,  when 
assigned,  the  assignee,  and  he  alone,  can  sue.  Van  Doren  v. 
Relfe,  20  Mo.  456. 

The  only   remaining  question  is   whether  the  deed  to  plaintiff 


AVIIO    CAN    MAINTAIN    ACTION    FOli    IJKKACII    OF    COVENANTS.     727 

will  operate  as  an    assignment  of  the  prior  covenants,  so  as  to 
protect  the  assignee   as  to  the  damages  he  has   sustained.      As 
having  some  bearing  upon  this  (|uestion,  it    may   bo  stated  that, 
by  our   statute,  any    person    claiming  title   to    real  estate  may, 
though  there  be  an  adverse  possession,  convey  his  inteiest  as  if 
he  were  in  the  actual  posse>sioii.     Section  673,  Rev.  St.  1879. 
Kimball  v.  Bryant,   25   Minn.   49fi,  was  an  action   on    the  cov- 
enant of   sei-in   in  u  deed   from   defendant  to  Hardy,  whr»  con- 
veyed with  full  covenants  to  the   plaintiff.     The   grantor  in  the 
first  deed    had  no  title,  and   it  di<I  not  appear  he   was  even  in 
possession.     The  court  said:    "  The  covenant    is  taken  for  the 
j)rotection  and  assurance  of  the  title  which  the  grantor  assumes 
to  pass  by  his  deed  to  the  covenantee;  and,  where  the  covenantee 
assumes  to  pass  that  title   to  another,  it   is  fair  to  suppose  that 
he  intends  to    pass  with  it,   for  the   protection  of  his  oriantee, 
every  assurance  of    it  that  he   has,  whether  resting  in  ri^ht  of 
action  or  in  unbroken  covenant  ;  so  that  if,  before  enforcino-  his 
remedy  for  breach  of    the  covenant,  the  covenantee  execute  a 
conveyance  of    the    land,  unless  there  be  something  to   show  a 
contrary  intention,  it  may  be  [)resumed  that  he  intended  to  con- 
fer on  his  grantee  the  benefit  of  the  covenant,  so  far  as  neces- 
sary for  his  protection;    that  is,  that  he  intends  to  pass  all  his 
right  to  sue  lor  the  breach,  so  far  as  the  grantee  sustains  injury 
by  reason  of  it.      See,  also,   Schofield  v.    Iowa  Homestead  Co  , 
32  Iowa,  318. 

In  Wead  v.  Larkin,  54  III.  498,  the  court,  after  reachino-  the 
conclusion  that  where  the  covenantee  takes  p(Jssession  and  con- 
veys, the  covenant  of  warranty  in  the  deed  to  him  will  pa>s  to 
his  grantee,  although  the  covenantor  may  not  have  been  in  pos- 
session at  the  time  of  his  conveyance,  proceeds  to  say:  '<  It  is 
not,  however,  to  be  supposed,  because  we  do  not  now  lay  down 
a  broader  rule  than  is  required  by  the  case  before  us,  that  we 
hold,  by  implication,  the  covenants  would  not  pass  if  the  imme- 
diate covenantee  should  convey  before  taking  possession.  *  *  * 
We  should  be  inclined  to  say,  that  although  the  covenant  of  war- 
ranty is  attached  to  the  land  and  for  that  reason  is  said,  in  the 
books,  to  pass  to  the  assignee,  yet  this  certainly  docs  not  mean 
that  it  is  attached  to  a  paramount  title,  nor  does  it  mean  that  it 
is  attached  to  an  imperfect  title,  or  to  possession,  and  only  passes 
with  that;  but  it  means  simply,  that  it  passes  by  virtue  of  the 
privity  of  estate  created  by  the  successive  deeds,  each  grantor 
being  estopped  by  his  own  deed  from  denying  that  he  has  con- 
veyed an  estate  to  which  the  covenant  would  attach." 

As  our  covenant  of  seisin  runs  with  the  land,  what  is  there 
said  as  to  the  covenant  of  warranty  is  equally  applicable  to  it. 


728  THE  KEQUISITKS  AND  COMPONKNT  PAKTS  OF  A  DEED. 

Tlio  Piittei^on  deed  contains  full  covenants,  and  it  was  certainly 
the  purpose  to  Iriinsfer  to  j)ljiintiff  wlnitever  covenants  and  assur- 
ances the  grantor  lield,  whether  broken  or  unbroken,  and  no 
good  reason  is  perceived  why  the  intention  of  the  parties  should 
not  l)e  made  effectual,  iiistcatl  of  being  frustrated  and  wholly 
defeated.  Had  Patterson  brought  tlu;  >uit  on  the  covenants,  we 
are  of  the  opinion  the  deed  to  phiintiff  would  have  been  a  com- 
plete defense.  The  plaintiff,  on  making  proof  of  damages,  will 
be  entitled  to  recover.  That  many  authorities  woidd  lead  to  a 
different  result  is  conceded;  but  the  reason  of  many  of  them  is 
overthrown,  when  it  is  shown  that  choses  in  action  are  assign- 
able, that  the  covenant  of  seisin  runs  with  the  land,  as  an  in- 
demnity to  the  party  who  in  fact  suffers  the  loss,  and  that  real 
property  may  be  conveyed,  though  in  the  adverse  possession  of 
another. 

The  judgment  is  reversed,  and  cause  remanded.     All  concur. 


Covenant  Running  with  the  Land  not  a  Condition. 

Post  V.  Weil,  115  N.  Y.  361;  22  N.  E.  145. 

Gray,  J.  This  action  arose  out  of  the  refusal  of  the  appel- 
lants' testator  to  complete  his  agreement  to  purchase  certain  lots 
of  land  in  the  city  of  New  York.  Their  sale  had  been  at  public 
auction,  and  by  its  teiras  an  indisputable  tiile  was  offered  to  pur- 
chasers. Weil,  the  appellants'  testator,  refused  to  accept  the 
deed,  which  was  tendered  to  him,  on  the  ground  that,  by  the 
provisions  of  a  former  deed,  on  record,  and  through  which  the 
title  of  the  vendors  was  derived,  the  property  of  which  these 
lots  were  part  was  subject  to  the  operation  of  a  condition  subse- 
quent, to  wit,  a  condition  that  no  part  of  the  premises  should 
ever  be  used  or  occupied  as  a  tavern.  Whether  this  objection 
was  sound  and  available  to  Weil  is  the  question  which  is  involved 
in  this  appeal. 

After  a  careful  consideration  of  the  facts,  and  upon  a  review 
of  the  whole  situation,  I  am  unable  to  find  any  serious  difficulty 
in  reading  the  clause  in  question  as  a  covenant  whether  we 
consider  it  on  principles  of  strict  law  or  of  common  justice. 
Mere  words  should  not  be,  and  have  not  usually  been,  deemed 
^•ufficlent  to  constitute  a  condition,  and  to  entail  the  conse- 
quences of  forfeiture  of  an  estate,  unless,  from  the  proof, 
xuch  appears  to  have  been  the  distinct  intention  of  the 
grantor,  and  a  necessary  understanding  of  the  parties  to  the 
instrument.     Nor  should  the  formal  arrangement  of  the  words 


COVENANT    RUNNING    WITH    THE    LAND    NOT    A    CONDITION.       729 

influence  us  wholly  in  determining  what  the  clause  was  inserted 
to  accomplish;  but  in  this,  as  in  every  other  case,  our  judgment 
should  be  guided  by  what  was  the  i)robable  intention,  viewing 
the  matter  in  the  light  of  reason.  The  operation  of  this  clause, 
as  contended  for  by  the  appellant,  would  have  been  to  effect  a 
great  injustice;  whereas  if,  as  we  read  it,  it  was  intended  as  a 
covenant  for  the  protection  of  property,  no  prejudice  could 
accrue  to  any  one,  and  the  purpose  in  the  original  grant  would 
be  respected  and  preserved  in  all  its  integrity.  I  am  aware  of 
the  difficulty  which  attends  the  discussion  of  the  legal  question 
involved  in  this  case,  and  also  of  the  importance  which  is  given 
to  it  by  the  fact  that  the  courts  below  have  held  the  clause  lathe 
deed  to  be  a  condition  subsequent,  while  they  have  enforced  the 
performance  of  the  agreement  of  purchase  upon  other  grounds. 
I  shall,  therefore,  briefly  review  the  facts  as  they  appear  in  the 
record  before  us,  in  order  better  to  demonstrate  that  the  conclu- 
sion to  be  drawn  from  them,  as  to  the  probable  intention  of  the 
parties,  is  that  the  clause  under  consideration  could  only  have 
been  inserted  as  a  covenant. 

The  premises  in  question  were  formerly  part  of  a  large  estate 
lying  in  the  upper  portion  of  Now  York  island,  and  known  as 
"  Monte  Aita."  That  estate  and  an  adjoining  estate,  known  as 
"  Claremoiit,"  were  owned  and  occupied  as  farms  and  country 
residences  by  one  Michael  Hogan.  In  1807  he  entered  into  an 
agreement  in  writing  with  one  Jacob  Mark  lor  the  sale  to  him  of 
the  Monte  Alta  estate  for  a  sum  of  $16,000,  and  the  agreement 
contained  this  clause:  *'  Upon  the  special  condition  that  no  part 
of  the  land  or  buildings  thereon  should  ever  be  used  or  occupied 
as  a  tavern."  In  1811,  four  years  afterwards,  Hogan  and  wife 
deeded  to  Robert  Lenox,  Jacob  Stout,  and  John  Wells,  upon 
certain  trusts,  both  of  said  estates  ;  that  of  Monte  Alta,  however, 
subject  to  agreement  with  Mark.  Those  facts  are  disclosed, 
not  by  the  agreement  and  deed  themselves, —  for  they  do  not 
appear  to  have  been  recorded,  and  they  were  not  produced, — 
but  from  subsequent  deeds,  which  were  made  by  these  grantees, 
or  trustees,  of  Hogan,  and  the  Hogans,  in  conveyance  of  the 
properties  to  others.  We  are  without  information  as  to  the 
reason  for  the  non-completion  of  Hogan' s  agreement  with  Mark 
from  the  year  1807,  when  it  was  made,  until  the  year  1811 ;  and 
we  know  nothing  concerning  the  nature  of  the  trusts  upon  which 
Lenox  and  his  associates  in  the  trust  referred  to  received  and 
held  the  properties.  A  few  months  after  Hogan's  conveyance 
to  Lenox  and  others,  Monte  Alta  was  conveyed  to  Mark  by  a 
deed,  in  which  were  joined,  as  grantors,  Hogan  and  wife  and  the 
said  trustees.     That  deed  recited  the  facts  of  the  agreement  of 


730      THE   REQUISITES    AND    COMPONENT   PARTS    OF   A    DEED. 

Ilogaii  to  yoU  to  Mark,  and  of  the  conveyance  by  Hogun  and 
wife  to  Li'nox  and  others  as  trustees,  subject  to  tliat  agreement. 
It  conveyed  the  IVe  of  tlx;  premi.ses,  fieo  of  incumbrances,  and 
with  covenants  of  title  and  warranty,  but  with  the  foHouingfjro- 
vision  contained  in  tiie  luihendivia  chiuse,  viz. :  "  Provided 
always,  and  these  presents  are  upon  this  express  condition,  that 
the  aforesaid  premises  shall  not,  nor  shall  any  pait  thereof,  or 
any  building  or  buildings  thereon  erected  or  to  be  erected,  be  at 
any  time  hereafter  used  or  occupied  as  a  tavern  or  public  house 
of  any  kind."  The  Hogans'  grant  was  of  their  right,  title,  inter- 
est, dower,  and  right  of  dower,  etc.,  in  or  to  the  premises 
described,  while  that  of  Lenox  and  others  was  directly  of  the 
premises  themselves.  It  is  quite  probaljle  that  the  union  of  the 
Hogans  as  grantors  was  to  perfect  the  record  title,  which  the 
absence  from  the  records  of  their  deed  to  Lenox  and  others 
might  affect,  and  to  prevent  any  question  from  being  raised  as 
to  the  validity  of  Mark's  title.  In  the  conveyance  subsequently 
made,  in  1812,  of  the  Claremont  estate,  the  grantors  were  the  same 
as  in  that  of  Monte  Alta,  and  the  deed  was  similar  in  form  ;  but  it 
did  not  contain  tiie  clause  respecting  the  use  of  the  premises  which 
I  have  quoted  from  the  habendum  clause  in  the  deed  of  the 
Monte  Alta  property.  In  1816  a  release  of  that  restrictive  clause 
was,  as  a  matter  of  fact,  executed,  and  the  title  was  thus  freed 
from  any  question  which  might  aiise  by  reason  of  its  existence; 
but,  as  this  release  had  not  been  recorded,  and  was  lost  at  the 
time  of  the  sale  and  of  the  tender  of  the  deed  by  the  vendors, 
and  was  not  discovered  and  recorded  until  about  two  years  after- 
wards, and  alter  the  commencement  of  this  suit,  it  cannot  be 
considered  in  determining  upon  the  right  of  Weil  to  reject  the 
title  when  the  deed  was  tendered  to  him.  He  was  entitled  to 
rest  upon  the  state  of  facts,  as  it  was  proved  to  be,  when  he 
refused  to  accept  the  deed.  In  1819,  Lenox  and  others  executed 
to  Hogan  an  instrument  which,  after  recitirig  that  they  had  set- 
tled and  accounted  with  him  touching  the  trust  property  by  him 
conveyed  to  them  in  1811,  "  as  far  as  the  same  had  been  sold, 
appropriated,  collected,  received,  or  disposed  of  by  them," 
assigned  and  conveyed  to  him  whatever  remainder  there  might 
be  of  the  trust  property;  and  Hogan,  by  the  same  instrument, 
released  them  from  all  claims  respecting  execution  of  the 
trusts.  In  1821,  Joel  Post  became  the  owner  of  both  of 
these  estates,  and  he  and  his  heirs  held  the  same  from  that  time 
until  the  sale  by  the  heirs,  in  1873.  These  are  all  the  material 
facts  in  the  case.  When  the  purchaser  objected  that  the  estate 
was  subject  to  a  common  law  forfeiture,  because  of  the  condition 
subsequent  reserved  in  the  deed  to  Mark,  the  vendors  answered 


COVENANT    RUNNING    WITH    TIIF]    LAND    NOT    A    CONDITION.     731 

th;it  the  tripartite  deed  to  M;uk  did  not  reserve  a  condition  on 
tl)e  grant  in  fee  upon  which  a  forfeiture  would  inure  to  the 
frrantor  or  his  heirs  in  case  a  tavern  slioukl  at  any  time  be  kept 
on  the  lands  comprising  the  Monte  Alta  estate,  but  a  covenant 
which,  running  with  the  land,  would,  while  ke[)t  alive,  j.uove  an 
equitable  protection  against  any  injury  from  its  breach,  in  favor 
of  any  subsiding  interest,  entitled  to  insist  ui)on  a  performance 
of  the  covenant.  In  that  construction  of  the  clause  in  the  Mark 
deed  we  think  the  plaintiffs  were  right  ;  and,  as  that  conclusion 
would  dispose  of  the  whole  case,  no  other  of  the  answers  which 
they  make  in  defense  of  their  title  need  be  considered.  I  un- 
derstand the  ai)pellants'  counsel  to  concede  that  this  appeal  must 
succeed  on  the  sole  point  th:it  the  reservation  pointed  out  in  the 
deed  created  a  condition  subsequent,  and  in  fact  it  must  be  so  ; 
for  if  it  created  a  covenant  the  union  of  both  of  the  estates  in 
Joel  Post  in  1821  would  have  the  natural  and  legal  result  of  ex- 
tinguishing the  covenant. 

Although  the  words  of  the  clause  in  question  are  apt  to 
describe  a  condition  subsequent,  reserved  by  a  grantor,  we  are 
in  nowise  obliged  to  take  them  literally.  In  the  consideration 
of  what,  by  the  use  of  these  words,  w;is  imported  into  the  con- 
veyance, we  are  at  liberty  to  affix  that  meaning  to  them  which 
the  general  view  of  the  instrument  and  of  the  situation  of  the 
parties  makes  manifest.  Whether  they  created  a  condition  or  a 
covenant  must  depend  upon  what  was  the  intention  of  the  parties, 
for  covenants  and  conditions  may  be  created  by  the  same  words. 
In  order  that  a  covenant  shall  be  re;id  from  the  words  of  an  in- 
strument, they  need  not  be  precise  nor  technical,  nor  in  any 
particular  form.  In  Bacon's  Abridgment  ("  Covenant,"  A)  it 
is  said:  "  The  law  does  not  seem  to  have  appropriated  any  set 
form  of  words  which  are  absolutely  necessary  to  be  made  use  of 
in  creating  a  covenant."  In  Sheppard's Touchstone  (pages  161, 
162)  it  is  said:  "  There  need  not  be  any  formal  words,  as  *  cove- 
nant,' *  promise,'  and  the  like,  to  make  a  covenant  on  which  to 
ground  an  action  of  covenant,  for  a  covenant  may  be  had  by  any 
otlier  words."  Chancellor  Kent,  in  his  Commentaries  (volume 
4,  *132),  in  speaking  of  whether  a  clause  in  a  deed  shall  be 
taken  to  create  a  covenant  or  a  condition,  says:  "Whether 
the  words  amount  to  a  condition,  or  a  limitation,  or  a  covenant, 
may  be  matter  of  construction,  depending  on  the  contract. 
The  intention  of  the  party  to  the  instrument,  when  clearly 
ascertained,  is  of  controlling  efficacy,  though  conditions  and 
limitations  are  not  readily  to  be  raised  by  mere  inference  and 
argument."  The  chancellor  sums  up  the  matter  in  this  lan- 
guage :  "The  distinctions  on  this  subject  are  extremely  subtle  and 


732        THE    REQUISITES    AND    COMPONENT   PARTS    OF    A    DEED. 

artificial,  and  tlio  coustruction  of  a  deed,  as  to  its  operation  and 
effect,  will,  after  all,  depend  lessupon  artificial  rules  than  upon  tlio 
application  of  good  sense  and  sound  ecjuity  to  the  object  and 
spirit  of  the  contract  in  a  given  case."  Loid  Mansfield  said 
(Lant  V.  Norris,  1  Burrows,  290),  that  no  particular  technical 
words  are  requisite  towards  making  a  covenant;  and  Lord  Eldon 
said  (Church  v.  Brown,  15  Ves.  2(54),  that  covenants  may  bo 
for  almost  anything.  That  they  have  frequently  been  inserted 
in  conveyances  to  maintain  the  eligible  character  of  property 
adjoining  the  parcel  conveyed,  by  protecting  it  against  the  crea- 
tion of  nuisances  of  offensive  structures,  or  against  the  carry- 
ing on  of  an  injurious  or  offensive  trade,  is  a  familiar  fact.  It 
seems  unnecessary  to  cite  from  the  opinions  of  judges  or  of  the 
writers  ui)on  the  subject  ot'jurisprudence,  for  there  is  a  general 
C07isensus  in  opinion  among  them  that  the  question  is  one  always 
open  to  the  determination  most  consistent  with  the  reason  and 
the  sense  of  the  thing.  Reference,  whether  it  bo  to  the  earlier 
or  later  reports,  fails  to  aid  us  in  deducing  from  them  a  defined 
principle  of  construction.  Many,  if  not  most,  of  the  early 
cases  have  been  those  turning  upon  the  construction  of  clauses  in 
leases  ;  and  in  each  ca?e,  m)  far  as  the  examination  I  have  been 
able  to  give  enables  me  to  say,  the  court  construed  the  clause  as 
the  circumsttmct'S  and  facts  of  that  particular  case  seemed  to  de- 
mand. I  would  not  pretend  toreconcileall  the  decisions  which  have 
been  made  upon  the  subject ;  but  I  readily  extract  the  principle 
that  technical  words  may  be  overlooked  where  they  do  not  inev- 
itably evidence  the  intention  of  parties.  I  think  the  tendency 
of  the  law  has  l)een  to  assume  towards  this  vexed  question,  as 
towards  others  which  have  come  down  from  the  days  of  the  old 
common  law,  a  more  scientific  attitude.  So,  if  the  only  reason 
for  construing  a  clause  is  in  tlie  technical  words  which  have  been 
used,  the  court  may  disregard  them  in  performing  the  office  of 
interpretation.  If  we  can  construe  this  clause  as  an  obligation 
to  abstain  from  doing  the  thing  described,  which,  by  acceptance 
of  the  deed,  became  binding  upon  the  grantee,  as  an  agreement, 
enforceable  in  behalf  of  any  interest  entitled  to  invoke  its  pro- 
tection, I  think  we  are  in  conscience  bound  to  give  that  con- 
struction, and  thereby  {)lace  ourselves  in  accord  with  that 
inclination  of  the  law,  which  regards  with  disfavor  conditions 
involving  forfeiture  of  estates.  In  this  connection  it  may  be 
noted  that  there  is  no  clause  in  the  deed  giving  the  right  to  re- 
enter for  conditions  broken.  While  the  presence  of  such  a  clause 
in  not  essential  to  the  creation  of  a  condition  subsequent,  by 
which  an  estate  may  be  defeated  at  the  exercise  of  an  election 
by  the  grantor  or  his  heirs  to  re-enter,  yet  its  absence,  to  that 


COVENANT  RUNNING  WITH  THE  LAND  NOT  A  CONDITION.  733 

extent,  frees  still  more  the  case  from  the  difficulty  of  giving  a 
more  benignant  construction  to  the  proviso  clause.  The  presence 
of  H  re-entry  clause  might  make  certain  that  which,  in  its  uh- 
f^ence,  is  left  open  to  construction.  The  absence  of  such  a  clause 
may  have  its  significance,  in  connection  with  the  circumstances 
of  tlie  case  and  tlio  intent  to  be  fairly  presumed  therefrom. 

Now,  tiie  fir>t  significant  featnie  of  this  case,  which  may  be 
referred  to  in  determining  the  intention,  is  the  agreement  between 
Hogan  and  Mark.  That  was  the  agreement  by  which  the  one 
was  to  sell  and  the  other  to  buy  Monte  Alta.  In  it  was  inserted 
a  "  special  condition  that  no  part  of  the  land  or  tiie  buildings 
thereon  should  ever  be  used  or  occupied  as  a  tavern."  That 
was  the  agreement  or  understanding  of  both  parties  as  to  a 
restriction  upon  the  use  the  premises  might  bo  put  to.  Then  we 
are  to  presume,  from  what  took  place  in  the  conve3'ance  after- 
wards by  Hogan  to  the  trustees  of  both  the  Monte  Alta  and 
Claremont  estates,  and  their  subsequent  accounting  with  him,  that 
Hogan  had  become  financially  embarassed,  and  had  sought  this 
equitable  mode  of  settling  with  his  creditors.  But  when  the  trus- 
tees carrried  out  the  agreement  which  Hogan  had  made  with  Mark, 
and  deeded  the  Monte  Alta  property  to  Mark,  they  incorporated  in 
their  deed  the  restriction  which  had  been  agreed  to  in  the  contract 
as  to  the  use  of  the  property.  Now,  the  obvious  and  only  pur- 
pose which  Hogan  couUl  have  had  in  view  when  the  contract  was 
made  was  to  protect  the  adjacent  property,  which  he  then  owned, 
from  being  injured  by  the  vicinity  of  an  undesirable  structure  or 
business.  I  think  we  all  will  agree  that  the  presumption  here, 
as  in  every  other  case  where  a  restriction  is  inserted  in  a  deed 
against  undesirable  structures  or  trades,  is  that  the  insertion  was 
for  the  purpose  of  protecting  rights  which  the  grantor  had  in 
adjacent  property.  In  this  case  Che  clause  obviously  was  for  the 
benefit  of  the  Claremont  estate.  This  view  is  reinforced  by  the 
fact  that  when  the  trustees  came  to  sell  the  Claremont  property 
no  such  condition  was  inserted  in  that  deed.  When  the  trustees 
disposed  of  the  Monte  Alta  property,  Hogan  had  ceased  to  have 
any  interest  in  it,  other  than  in  having  it  bring  all  that  could  be 
obtained  from  a  sale  of  the  properties,  in  order  to  free  himself 
from  his  embarrassments.  When  the  legal  estate  became  vested 
in  the  trustees  their  duty  was  to  make  the  sales  yield  all  that  was 
possible.  They  had  no  interest  to  subserve  by  conveying  the 
property  subject  to  any  condition  subsequent.  The  effect,  how- 
ever, of  a  covenant  in  the  deed  to  Mark,  coveiing  a  restriction 
like  that  in  the  agreement  of  the  parties  would  be  to  enhance  the 
market  value  of  the  other  property  by  preserving  to  the  whole 
an  eligible  character.     An  intention  that  the  restrictive  clause 


734        THE   REQUISITES  AND    COMPONENT   PARTS  OF   A  DEED. 

should  operate  us  a  condition  subsequent  seems  hardly  suppos- 
able  under  the  circumstances.  Except  we  take  tlic  wordn 
literally,  no  reason  sugjjjests  itself  for  that  construction.  Iloi^an 
had  no  Icir.d  interest  in  the  proi)erty  at  the  time  of  the  convey- 
ance. What  interest  could  he  then  have  which  his  trustees  might 
be  supposed  to  subserve,  or  which  he  might  be  su[)posed  to  insist 
upon,  in  securing  a  reverter  of  the  one  Monte  Alta  estate  to 
himself  or  his  heirs?  None  is  apparent;  and  I  say,  therefore, 
that  the  reason  and  the  sense  of  the  thing  indicate  that  the 
clause  is  to  be  read  as  a  covenant. 

In  construing  a  clause  which  imports  into  an  instrument  a 
restriction,  or  imposes  an  obligation  not  to  do  something,  reliance 
should  be  placed  upon  the  known  or  supposable  aim  of  the 
grantor,  or  upon  the  sense  of  his  act.  So  long  as  technical 
words  are  to  be  deemed  unavailing  to  control  interpretation, 
we  should  disregard  them,  and  have  resort  to  what  may  furnish 
some  evidence  of  the  underlying  intention.  In  speaking  of  the 
sense  of  the  act,  I  refer  as  well  to  the  apparent  object  to  be 
attained  as  to  the  mode  resorted  to  in  order  to  affect  it.  What 
reason  have  we  to  justify  us  in  attaching  to  these  particular 
words  so  technical  a  meaning,  and  to  freight  them  with  such 
serious  consequences,  when  it  appears  that  no  such  interest  exists 
in  the  grantors  as  demands  a  reservation  of  such  a  condition,  or 
makes  it  in  the  slightest  degree  important?  Where  does  the  neces- 
sity exist  for  such  a  technical  construction?  Here  the  grantors 
of  the  legal  title  had  no  interest  in  creating  a  reverter  to  them- 
selves, for  they  were  mere  trustees.  Their  grantor,  whatever 
his  beneficial  interest  in  the  trust,  had  no  apparent  interest  to 
subserve,  which  is  pointed  out  or  which  is  discoverable,  in  plan- 
nin<x  a  reverter  of  the  estate  for  a  breach  of  condition.  There 
was  no  interest  which  was  not  adequately  met  by  the  creation  of 
a  covenant  or  limitation  in  trust  that  the  property  should  not  be 
used  for  the  one  certain  purpose  mentioned.  I  think  it  more 
agreeable  to  reason,  as  it  is  to  the  conscience, —  and  it  well  com- 
ports  with  the  character  and  origin  of  this  deed,  — if  we  say  that 
the  office  of  this  clause  was  sim[)ly  to  restrain  the  generality  of 
the  preceding  chiuse.  See  Chapin  v.  Harris,  8  Allen,  594.  The 
words  "  provided  alwa3's,  and  these  presents  are  upon  this 
express  condition,"  seem  to  me  to  serve  the  purpose  of  restrict- 
ing that  the  use  of  the  preriiises  which  was,  of  course,  general 
and  unrestricted  under  the  grant.  They  do  not  import  any  new 
and  separate  idea,  and  I  think  the  rule  is  a  safe  one,  that  words 
alone  should  not  be  deemed  to  create  a  condition  subsequent  and 
to  be  capable  of  importing  possible  future  forfeiture  of  estate, 
except  where  they  do  introduce  some  new  clause  the  sense  of 


COVENANT    RUNNING    WITH    Til  10    LAND    NOT    A    CONDITION.     735 

wbicb  is  not  referable  to,  and  in  qualification  of,  some  preced- 
ing chiuse,  and  evidences  some  purt  of  tbe  consideration  for  the 
grunt  of  tbe  property  by  the  imposition  of  an  obligation  upon 
tbe  grantee.  Looking  at  these  words,  may  we  say,  as  they 
stand  in  tbe  deed,  that  they  are  conditional  in  sense,  when  they 
in  reality  serve  to  qualify  the  generality  of  the  grant  in  tbe  lan- 
guage which  precedes  them?     I  think  we  cannot,  in  reason. 

In  Avery  v.  Railway  Co.,  106  N.  Y.  142;    12  N.  E.  Rep.  619, 
we    have   a  late  exposition  of  the  views  of  this  court  upon  tbe 
effect  to    be  given  to  language  in  detds  purporting  to  convey 
upon  express    conditions.     In  that  case  it  was  sought  to  enjoin 
the  defendant    from  maintaining  a  fence  upon   a  strip  of  land 
dividing  its  depot  premises  from  the  plaintiff's  hotel  premises, 
and  from  thus  blocking  up  a  passage-way  between  the  hotel  and 
depot.     The  land  upon  which  defendant  built  the  fence  was  con- 
veyed   by    deeds    which    contained    the    following     provisions: 
"  U'his  conveyance  is  upon  the  express  condition  that  the  said 
railroad    company,  its  successors  or  assigns,  shall  at  all  times 
maintain  an  opening  into  the  premises  hereby  conveyed  opposite 
to  the  Exchange  Hotel,  so  called  [being  the  plaintiff's  premises], 
adjacent  to  the  ])remises  hereby  conveyed,"  etc.     Tbe  grantors 
in  these  deeds  had  acquirid  title  under  a  will  to  the  hotel  prop- 
erty, and  their  testator   had  been   tbe  grantor  of  the  property 
used  by  the  defendant  for  its  de[)ot.     The  defendant  denied  the 
right  of  plaintiff,  to  whom  tbe   hotel  propeity  had  been  leased 
by  the  devisees,  to  maintain  the  action,  alleging  that  the  language 
of  tbe  provision  in  the  deeds  created    a  condition  subsequent, 
which  could  only  betaken  advantage  of  by  the  grantors  and  their 
heirs.     The  plaintiff  claimed  that  it  must  be  construed  as  a  cove- 
nant.    Judge  Peckham,  delivering  the  opinion  of  the  court,  said: 
♦'  We  incline  to  the  construction  contended  for  by  the  plaintiff. 
Tbe  fact  that  tbe  deed  uses  the  language  '  upon  condition,'  when 
referring  to   the    conveyance   by  tbe  grantors,  is  not  conclusive 
that  the  intention  was  to  create  an   estate  strictly  upon   condi- 
tion.    *     *     *     Construction  may  frequently  be  aided  by  ref- 
erence to  all  the  circumstances  surrounding  the  parties  at   the 
time  of   the  execution  of  the  deeds,  because  tbe  court  is  thus 
enabled  to  be  placed  exactly  in  their  situation,  and    to  view  the 
case  in  tbe  light  of  such  surroundings."     After  referring  to  the 
facts,  be  continues:   "  All  these  facts  would  lead  one  to  the  un- 
hesitating conclusion    that  the  language  used  in  those  deeds  in 
1857    was  for  the  benefit  of    the  hotel  property,  and  was  not 
meant  to  create  a  condition  subsequent.      *     *     *     j(^  ^y.^^,  jjj_ 
tended  to  be  an  agreement  or  covenant  between  the  parties  run- 
ning with  the  land,  providing  for  this  access  or  right  of  way,  so 


736  WILLS. 

as  to  continue  or  enhance  the  value  of  the  hotel  property  by 
])rovi(ling  for  such  easy  access  to  it  from  defendant's  de{)ot  for 
passengers  and  baggage.  See  Stanley  v.  Colt,  5  Wall.  119; 
Countryman  v.  Deck,  13  Abb.  N.  C.  110.  Courts  frequently, 
in  arriving  at  the  meaning  of  the  words  in  a  wiitten  instrument, 
construe  that  which  is  in  form  a  condition,  a  breach  of  which 
forfeits  the  whole  estate,  into  a  covenant  on  which  only  the  act- 
ual damage  can  be  recovered.  See  Hil.  Keal  Prop.  (4th  Ed.), 
p.  526,  §  13;  2  Washb.  Real  Prop.  (3d  Ed.),  c.  14,  subd.  3, 
p.  3  el  seq."  The  avenue  of  reasoning  by  which  the  court 
reached  their  conclusion  in  that  case  is  the  one  which  ought  to 
lead  us  in  our  conclusion  now,  —  that  the  clause  in  question  in 
the  case  at  bar  was  intended  as  a  restriction  created  for 
the  benefit  of  the  adjoining  property  expressed  in  the 
strongest  terms,  and  which  was  enforceable  as  a  covenant 
running  with  the  land,  and  was  not  a  condition  subse- 
quent, imposed  for  the  personal  benefit  of  the  grantors  and 
their  heirs. 

For  the  reasons  stated,  the  judgment  appealed  from  should  be 
aflSrmed,  with  costs.  All  concur  (Andrews,  J.,  in  result), 
except  Ruger,  C.  J.,  not  voting. 


CHAPTER     XXIII. 

WILLS. 

Claiborne  v.  Radford,  91  Va.  527;  22  S.  E.  348. 
In  re  Walter's  Will,  64  Wis.  487;  25  N.  W.  538. 

Cartwrifrht  v.  Cartwriuht,  1  Phillimore,  90. 

In  re  Hunt's  Will,  110  N.  Y.  278;  18  N.  E.  106. 

RigSS  V.  Palmer,  115  N.  Y.  506;  22  N.  E.  189. 

Newcomb  v.  Webster,  113  N.  Y.  191 ;  21  N.  E.  77. 

Pickens  v.  Davis,  134  Mass.  252. 

Form  of  Will — When  Instrument  is  a  Deed  or  Will. 

Claiborne  v.  Radford,  91  Va.  527;  22  S.  E.  348. 

Keith,  P.  The  appellant,  Ellen  Du  Val  Claiborne,  who 
was  Ellen  Dn  Val  Radford,  filed  her  bill  in  the  circuit  court 
for  the  county  of  Bedford,  making  Du  Val  Radford  (in  his 
own  name,  and  as  administrator  of  R.  C.  W.  Radford,  de- 
ceased, and  as  administrator  d.  b.  n.  of  Octavia  Du  Val 
Radford,    deceased),    Thomas    S.     Radford,    and    others,    de- 


FORM  OF    WILL WHEN    INSTRUMENT    IS    A    DEED  OR  WILL.    737 

feiidants,  in  which  she  asks  tliat  a  decree  may  be  entered  requir- 
ing Du  Val  Radford  to  pay  over  to  her  the  sum  of  $10,000, 
which  she  claims  as  being  in  his  hands,  and  as  belonging  to  her. 
The  defendant  answered  the  bill,  and,  among  other  defenses,  set 
out  the  fact  that  the  complainant  had,  by  deed,  conveyed  her 
interest  in  the  money  which  she  demanded  of  him  to  W.  V. 
Wilson,  upon  a  certain  trust,  and  avers  that  the  property  de- 
manded of  him  is  claimed  l)y  the  said  W.  V.  Wilson,  as  trustee, 
and  prays  that  the  complainant  may  be  required  to  amend  her 
bill  so  as  to  bring  her  trustee  before  the  court.  This  amended 
bill  was  filed,  and  the  trustee  n)ade  a  piirty.  In  the  amended 
bill  the  complainant  presents  for  the  consideration  of  the  court 
the  construction  of  the  paper,  in  form  a  deed,  dated  the  2d  of 
July,  1891,  and  which  is  as  follows  :  — 

"  This  deed,  made  this  the  2nd  day  of  July,  in  the  year  of 
our  Lord,  1891,  between  Ellen  Du  Val  Radford,  party  of  the 
first  part,  and  Wm.  V.  Wilson,  Jr.,  trustee,  p;irty  of  the  second 
part,  witnesseth,  that  for  and  in  consideration  of  the  sum,  of  five 
dollars,  the  receipt  of  which  is  hereby  acknowledged,  the  said 
party  of  the  first  part  does  hereby  grant,  bargain,  sell,  and 
convey  unto  the  said  party  of  the  second  part,  all  of  her 
stock,  bonds,  and  other  evidences  of  debt,  to  be  held  by 
him,  the  said  party  of  the  second  part,  and  his  qualified 
successors,  upon  the  following  trusts,  for  the  sole  use  and 
benefit  of  the  said  Ellen  Du  Val  Radfoid  for  and  during 
her  life :  The  s;iid  trustee  shall  have  power  and  authority  to 
collect  any  and  all  outstanding  debts  whenever  he  may  think 
proper  to  do  so,  and  relend  the  principal,  upon  good  city 
real  estate  security.  The  interest  and  dividends  on  all  the 
property  hereby  conveyed  shall  be  collected  by  the  said  trustee, 
and  paid  over  to  the  said  Ellen  Du  Val  Radford,  and  after 
deducting  from  the  same  reasonable  compensation  for  the  said 
trustee  for  his  services.  The  stocks  and  railroad  bonds  now 
owned  by  the  said  party  of  the  first  part,  and  by  this  deed  con- 
veyed, shall  not  be  sold  by  the  trustee  without  the  written  con- 
sent of  the  said  Ellen  Du  Val  Radford,  and  in  case  of  such  sale 
the  proceeds  shall  be  reinvested  or  loaned  oiit  as  hereinbefore 
provided  by  the  said  trustee.  All  the  said  property  hereby 
conveyed  that  is  held  by  any  bank  or  individual  as  collateral 
security  for  any  debt  of  the  said  party  of  the  first  part  shall  be 
loaned  for  such  debt,  and  the  said  trustee  shall  have  the  power 
to  make  the  proper  transfers,  if  necessary,  for  the  settlement  of 
such  debt,  but  the  same  shall  not  be  liable  for  any  debt  hereafter 
created  by  either  of  the  parties  of  this  deed.  And  at  the  death 
of  the  said  party  of  the  first  part  the  property  hereby  conveyed 

47 


738  WILLS. 

shall  pass  to  the  children  of  the  said  party  of  the  first  part,  if 
she  leave  any,  but  if  she  leave  no  children  the  same  shall  pass  to 
her  heirs  at  law,  as  though  the  same  were  real  estate.  Witness 
the  following  signature  and  seals:  [Signed]  Ellen  Du  Val 
Radford.     [Seal.j     Wm.  V.  Wilson,  Jr.  [Seal],  Trustee. 

"  State  of  Virginia,  City  of  Lynchburg,  to  wit:  I,  Thos.  D. 
Christian,  a  notary  puT)lic  in  and  for  tlie  city  and  State  afore- 
said, do  certify  that  Ellen  Du  Val  Redford  and  William  V. 
Wilson,  Jr.,  whose  names  are  signed  to  the  writing  above,  bear- 
ing date  on  the  2nd  day  of  July,  1891,  have  acknowledged  the 
same  before  me  in  my  city  aforesaid.  Given  under  my  hand 
this,  the  2nd  day  of  July,  1891.  [Signed]  Thos.  D.  Christian, 
Notary  Public. 

"  Virginia.  In  the  clerk's  office  for  the  corporation  court  for 
the  city  of  Lynchburg,  the  3rd  day  of  August,  A.  D.  1891. 
This  deed  was  presented,  and,  upon  the  annexed  certificates  of 
acknowledgments,  admitted  to  record.  Teste:  [Signed]  S.  G. 
Wingfield,  Clerk." 

Complainant  claims  that  this  paper  is  not  a  deed,  by  which 
her  interest  in  the  property  mentioned  was  divested,  but  that  it 
is  a  power  of  attorney  creating  W.  V.  Wilson  an  agent  for  the 
management  of  the  property  mentioned  therein,  and  that  the 
concluding  clause  is  testamentary  in  its  character,  and  that 
the  whole  instrument,  whether  regarded  as  a  power  of  attor- 
ney or  a  paper  testamentary,  is  revocable;  and,  proceeding 
upon  this  idea,  she,  on  the  5th  day  of  October,  1892,  executed 
another  paper,  under  seal,  by  which  she  undertakes  wholly  to 
revoke  and  annul  the  aforesaid  instrument,  and  to  terminate 
the  authority  and  interest  of  William  V.  Wilson  as  trustee. 
The  record  presents  two  questions  for  our  decision ;  one 
arising  upon  the  original  bill,  and  to  which  I  shall  no  further 
advert  than  to  say  that,  as  the  whole  matter  in  controversy 
is  settled  by  the  disposition  which  we  have  made  of  the 
amended  bill,  no  reference  need  be  made  to  it  in  this  opinion. 
We  will  address  ourselves,  therefore,  to  ascertaining  the  con- 
struction to  be  placed  upon  the  paper  purporting  to  be  a  deed, 
and  dated  the  2d  of  July,  1891.  The  arguments  of  counsel  on 
both  sides  have  been  exhaustive  of  every  phase  of  the  subject, 
and  the  citation  of  authorities  has  presented  for  our  considera- 
tion a  great  number  of  adjudged  cases,  many  of  which  are  not 
accessible  to  us  here.  In  our  view  of  the  case,  however,  it  is 
wholly  free  from  doubt  and  difficulty,  and  may  be  determined  by 
reference  to  well-established  elementary  principles.  To  us,  the 
attempt  to  treat  this  paper  either  as  a  power  of  attorney 
or    as    a    will    seems  to  rest  upon  an  entirely  erroneous  con- 


FORM  OF  WILL  —  WHEN  INSTRUMENT  IS  A  DKKD  OK  WILL.       739 

ce[)ti()n.  As  is  said  in  the  case  of  Ewing  v.  Jones  (Ind.  Sup.), 
29  N.  E.  1057,  tluM-e  is  nothino:  in  the  paper,  from  bep;inniiig 
to  end,  to  iudicate  that  it  is  a  will,  or  [)ai'takes  of  the  character 
of  a  will.  "  In  form,  in  substance,  in  recital,  and  declaration, 
it  is  u  deed  of  trust."  It  is  true  that  some  of  the  instructions 
given  the  trustee  as  to  the  management  of  the  property  dur- 
ing the  lifetime  of  the  grantor  would  have  been  entirely  appro- 
priate in  an  instrument  creating  a  mere  agency,  but  there  are 
also  terms  em[)loyed  unusual,  unnecessary,  inappropriate,  and 
improi)er  for  such  purpose  ;  and,  taken  as  an  entiret}',  it  may 
be  safely  affirmed  that  no  precedent  can  be  produced  of  a  power 
of  attorney  or  will,  or  writing  partaking  of  the  double  nature 
of  power  of  attorney  and  will,  presenting  the  characteristics  of 
that  under  consideration.  It  gjants,  bargains,  sells,  and  con- 
veys absolutely,  and  without  reservation  or  conditions,  all  the 
stocks  and  bonds,  and  other  eviilences  of  indebtedness,  the 
property  of  the  grantor,  Ellen  Du  Val  Radford,  to  William  V. 
Wilson  and  his  qualitied  successors,  in  trust  for  the  sole  use  and 
benefit  of  said  Ellen  duriujjj  her  lifetime.  Is  this  the  languasre 
of  a  power  of  attorney,  or  of  an  instrument  creating  a  trust? 
It  operates  to  vest  in  Wilson  whatever  interest  Miss  Radford 
may  have  had  in  the  property  descril)ed.  Its  operation  is  not 
postponed  until  her  death,  but  it  takes  effect  U|)on  the  instant 
of  the  execution  of  the  paper.  This  deed  was  written,  signed, 
and  acknowledged  before  a  notary  public  on  the  2d  day  of  July, 
1891.  On  the  8d  day  of  August  of  the  same  year  it  was  admit- 
ted to  record  in  the  office  of  the  corporation  court  of  the  city  of 
Lynchl)urg,  and  the  grantor  was  married  on  the  8th  day  of  the 
same  month.  The  deed  transfers  all  her  personalty  to  her  trustee. 
It  uses  apt  words  for  the  creation  of  an  equitable  separate  estate. 
It  excludes  the  marital  rights  of  the  husband  in  the  life  estate 
which  it  creates,  and  carefully  guards  against  his  enjoyment  of  it 
after  her  death  by  providing  that  it  shall  pass  to  her  children,  if 
she  shall  have  any,  or,  if  there  are  no  children,  that  it  shall  pass  to 
her  heirs  at  law,  as  real  estate.  Lookino;  to  the  surroundins^ 
circumstances,  and  to  the  language  of  the  deed,  it  may  fairly  be 
considered  that  the  contemplated  marriage  furnished  the  motive 
for  the  instrument,  and  that  it  was  the  purpose  of  the  grantor  to 
gnard  against  the  improvidence  or  the  ill  fortune  of  her  future 
husband.  Counsel  for  the  appellant  seize  upon  the  phrase,  "  at 
the  death  of  the  party  of  the  first  part  the  property  hereby 
conveyed  shall  pass  to  the  children  of  the  party  of  the  first  part, 
if  she  have  any,"  etc.,  as  clearly  impressing  a  testamentary 
character  upon  the  paper,  but  we  cannot  concur  in  this  view. 
As  we  have  seen,  the  property,  upon  the  execution  of  the  deed, 


740  WILLS. 

vested  at  once  in  the  trustee,  and  the  direction  of  the  clause  just 
quoted  is  that  it  "  Hhall  puss,"  not  from  the  </raiitor  —  for  it 
has  already  passed  from  the  grantor,  by  virtue  of  the  preceding 
})art  of  the  p:i|)er  —  hut  th:it  it  "shall  pass"  from  the  trustcii 
in  whom  it  had  vested,  as  directed,  at  her  death.  The  code  has 
jvrovided  for  the  protection  of  the  property  of  married  wonien 
hv  (u-cating  what,  for  the  sake  of  brevity,  has  been  designated 
as  "  statutory  separate  estate,"  but  by  section  22I>4  of  tlio  cod(! 
the  ]i<i:ht  to  weate  ecjuitable  separate  estates  is  ])reservcd  unaf- 
fected by  the  statute  law.  We  are  of  opinion,  therefore,  that 
whether  the  deed  of  July  2,  18i>l,  be  regarded  as  an  ordinary 
trust,  or  as  a  settlement  made  in  contemplation  of  marriage, 
and  creating  a  separate  equitable  estate  in  the  grantor  for  life 
(in  which  aspect  we  are  disposed,  under  all  the  ciicumstances  of 
the  case,  to  view  it),  we  consider  it  as  a  valid,  subsisting,  irre- 
vocable instrument.  We  are  of  oi)iiiion  that  there  is  no  error 
in  the  decree  complained  of,  and  that  it  must  be  affirmed. 


Will,    Written    in    Language    Unknown    bj'    Testator,   Valid, 

la  re  Walter's  Will,  G4  Wis.  487;  25  N.  W.  638. 

Appeal  from  the  circuit  court,  Shebo^-g m  County. 

All  instrument  in  writing  pur[)orliiig  to  be  the  last  will  and 
testament  of  Minna  Walter,  late  of  the  county  of  Shel)oygan, 
deceased,  was  presented  for  probate  to  the  county  court  of  that 
county  by  George  V.  Whiffen,  the  executor  therein  named,  and 
was  admitted  to  probate  by  that  court.  The  instrument  is  writ- 
ten in  the  English  language.  At  the  time  of  her  death  the 
estate  of  the  testatrix  consisted  of  her  wearing  apparel,  some 
bedding,  and  about  $1,000  in  choses  in  action.  It  does  not  ap- 
pear that  she  had  any  other  projierty  at  her  death.  In  her  will 
she  bequeathed  her  wearing  apparel  to  Sarah  Bolt,  her  neighbor, 
and  the  residue  of  her  property  to  one  Herman  Millert,  who, 
when  the  will  was  executed,  was  about  18  years  of  age,  and  with 
whom  the  testatrix  lived.  Neither  of  the  legatees  were  relatives 
of  the  testatrix.  She  left  surviving  her  three  brothers  residing 
in  Wisconsin,  and  sisters  and  descendants  of  sisters  residing  in 
Germany.  These  were  her  nearest  of  kin.  The  brothers  of  the 
testatrix,  Frederick,  Martin,  and  Christian  Schultz,  a[)i)ealed  to 
the  circuit  court  from  the  order  of  the  county  couit  admitting 
such  instrument  to  probate  as  the  last  will  and  testament  of  their 
deceased  sister.  The  issue  devisavit  vel  noii  was  tried  by  the 
court,  and  resulted  in  the  following  findings  of  facts :  — 

*'  (1)  That  said  Minna  Walter  died  on  the  sixth  day  of  Feb- 


WILL,  IN    LANGUAGE   UNKNOWN   BY   TESTATOR,    VALID.       741 

ruary,  1884,  at  the  town  of  Sheboygan  Falls,  in  Sheboygan 
County,  and  an  inhabitant  of  said  county.  (2)  That  the  instru- 
ment propounded  as  the  will  of  said  deceased  was,  on  this  twenty- 
third  day  of  November,  1881,  signed  by  said  Minna  Walter  by 
affixing  her  mark  thereto  in  tiie  presence  of  three  witnesses,  who 
subscribed  the  s;ime,  and  her  name  was  therein  signed  by  Francis 
Williams  in  her  presence  and  by  her  express  direction.  (3)  That 
aaid  will  was  written  in  the  English  language  at  the  request  and 
according  to  the  directions  of  said  Minna  Walter,  and  she  was  a 
German  and  did  not  understand  the  English  language;  but  said 
Minna  Walter  fully  stated  to  Francis  Williams,  who  draughted 
said  instrument,  through  an  interpreter  who  understood  both 
languages,  the  objects  and  bequests  therein  written;  and  after 
said  instrument  was  written  it  was  read  over  to  her,  and  ex- 
plained in  German  by  said  interpreter;  and  said  instrument  fully 
expressed  her  purposes  as  there  declared.  (4)  That  said  Minna 
Walter  was  at  all  of  said  times  of  sound  mind,  memory,  and 
understanding,  and  of  lawful  age  and  under  no  constraint. 
(5  )  That  said  instrument  so  propounded  for  probate  was  by  said 
Minna  Walter  then  and  there  in  the  presence  of  three  subscrib- 
ing witnesses,  declared  as  her  will;  and  said  witnesses,  at  her 
request,  and  in  her  presence  and  the  presence  of  each  other, 
subscribed  the  said  instrument  under  the  attestation  clause  as 
subscribing  witnesses,  and  said  witnesses  were  competent 
thereto." 

From  the  facts  thus  found  the  court  determined  that  the  in- 
strument in  question  is  the  last  will  and  testament  of  the  de- 
ceased, and  that  the  same  was  duly  and  legally  executed. 
Judgment  was  thereupon  entered  affirming  the  order  of  the 
county  court,  so  admitting  the  instrument  to  probate.  From 
that  judgment  the  same  three  brothers  of  the  testatrix  have 
a[)pealed  to  this  court. 

Lyon,  J.  The  learned  counsel  for  the  appellants  challenges 
the  accuracy  of  each  and  every  finding  of  fact  except  the  first, 
which  states  the  residence  of  the  testatrix  and  the  date  of  her 
death,  and  that  portion  of  the  third  which  finds  she  was  a  Ger- 
man and  did  not  understand  the  English  language.  He  argues 
with  much  ingenuity  that  the  testimony  fails  to  prove  any  of  the 
propositions  of  fact  thus  challenged.  After  an  attentive  per- 
usal of  tlie  testimony  we  find  ourselves  unable  to  agree  with 
counsel.  We  think  that  every  fact  essential  to  the  validity  of 
the  will  was  established  by  a  fair  preponderance  of  the  testi- 
mony ;  or,  at  least,  that  there  was  no  such  clear  preponderance 
of  testimony  against  any  material  finding  of  fact  as  will  authorize 
this  court  to  set  it  aside.     We  do  not  deem  it  necessary,  in  this 


742  WILLS. 

opinion,  to  set  out  the  testimony  and  discuss  it  at  length.  The 
stiiteincut  of  our  conclusions  thcicfroin  niu^it  suffice.  Aside 
from  the  finding  that  the  testatrix  did  not  understand  tlic  Ian- 
guaizo  in  which  her  alleged  will  was  vvritten,  it  cannot  be  doubted 
that  the  other  findings  of  fact  fully  justify  the  admitting  of  the 
instrument  to  prot)ate  as  the  last  will  and  testament.  We  are 
thus  brought  to  consider  the  only  question  of  law  presented  by 
this  appeal,  to  wit  :  Should  an  instru?nent  executed  with  all  the 
formalities  which  the  law  makes  essential  to  a  valid  execution  of 
a  will  which  purports  to  be  the  last  will  and  testament  of  the 
deceased  person  so  executing  it,  and  which  exi)resses  his  will  and 
intentions,  be  denied  probate  for  the  sole  reason  that  such  per- 
son did  not  understand  the  language  in  which  the  instrument 
was  written? 

This  is  an  interesting  and,  perhaps,  an  important  question. 
It  has  not  heretofore  been  raised  in  this  court  to  our  knowledge, 
and  the  industry  of  counsel  has  failed  to  find  a  direct  adjudica- 
tion of  the  question  elsewhere.  However,  in  Redtield  on  Wills, 
to  the  statement  in  the  text  thiit  "  it  seems  to  be  well  settled 
that  the  testator  may  put  his  will  in  any  language  he  may 
choose,"  there  is  a  note  in  which  the  author  says:  "  We  doubt 
if  the  common  law  will  allow  of  a  written  will  being  expressed 
in  a  language  not  understood  by  the  testator.  That  would  seem 
indispensable  to  anv  understanding  execution  of  the  instrument." 
Vol.  1,  p.  166  (4th  Ed.),  note  8. 

No  case  or  authority  is  cited  to  support  the  opinion  intimated 
in  the  last  extract.  The  reason  given  for  this  opinion  is,  in 
effect,  that  a  person  cannot  have  an  understanding  of  the  con- 
tents of  an  instrument  unless  it  be  written  in  a  language  he 
knows.  True,  he  may  not  get  such  understanding  i»y  reading 
the  instrument  himself,  but  there  are  other  methods  by  which  he 
can  be  accurately  informed  thereof,  although  he  may  not  be 
able  to  read  understandingly  a  word  of  the  instrument.  A  vast 
amount  of  accurate  knowledge  is  alone  imparted  to  the  mass  of 
mankind  by  means  of  translations  from  languages  understood  by 
but  few.  Such  is  the  foundation  of  our  belief  in  very  many 
most  important  selected  truths  in  theology,  science,  and  history. 
Important  writings  are  frequently  signed  without  perusal,  the 
signer  relj'ing  upon  the  statement  of  another,  who  knows  what 
the  instrument  contains,  as  to  its  contents.  If  the  information 
states  such  contents  truly,  the  signer  knows  just  w^at  he  has 
signed.  Were  an  issue  made  up  as  to  whether  the  signer  of  a 
written  instrument  knew  its  contents  when  he  signed  it,  and  the 
proof  should  show  that  he  never  read  it,  l)ut  was  accurately 
informed  of  its  contents  orally,  before  he  signed  it,  by  a  person 


WILL,  IN  LANGUAGE  UNKNOWN  BY  TESTATOR,  VALID.  743 

who  had  read  it,  the  issue  would  necessarily  be  found  in  the 
affirmative;  tliat  is,  that  the  signer  knew  the  contents  of  the  in- 
strument. There  can  be  no  doubt,  we  think,  that  a  person  who 
signs  an  obligation  or  promise  with  knowledge  of  its  contents, 
imparted  to  him  by  parol,  is  liable  thereon,  although  it  may  be 
written  in  a  language  he  does  not  understand.  The  question  is 
not  by  what  means  or  instrumentalities  the  signer  was  informed 
of  the  contents  of  the  instrnment,  but  did  he  know  its  contents 
when  he  signed  it? 

No  good  reason  is  perceived  why  this  is  not  also  true  of  wills. 
Of  course  it  is  essential  to  a  valid  will  that  the  testator  should 
have  had  an  intelligent  understanding  and  comprehension  of  its 
contents  when  he  executed  it.  The  formalities  required  by  law 
in  the  execution  of  wills  are  prescribed  for  the  purpose  (among 
others)  of  preserving  satisfactory  evidence  that  the  testator  in 
each  case  had  such  understanding  of  the  contents  of  his  will. 
But  the  law  does  not  require  that  he  shall  read  his  will  before 
execution,  or  be  able  to  read  it,  as  a  condition  to  its  validity. 
If  such  were  the  law,  the  blind,  or  those  persons  who  from  illit- 
eracy or  other  cause  are  unable  to  read,  could  never  make  a 
valid  written  testament.  The  same  would  be  true  of  many  per- 
sons who  may  desire  to  execute  a  written  will  when  in  extremis, 
and  who  are  otherwise  competent  to  do  so.  It  has  long  been 
held  that  persons  thus  circumstanced  may  execute  valid  written 
wills.  And  if  the  will  of  any  such  person  is  drawn  in  accord- 
ance with  his  instructions,  although  not  read  over  to  him,  it 
seems  now  to  be  settled  that,  if  otherwise  sufficient,  it  is  a  valid 
will.     1  Redf.  Wills,  p.  57,  c.  3,  sec.  6,  §  5. 

We  perceive  no  substantial  difference  in  principle  between  the 
cases  above  referred  to  and  one  in  which  a  will  is  drawn  up  in  a 
language  which  the  testator  does  not  understand.  In  cases  be- 
longing to  either  class  the  court  should  require  satisfactory  proof 
that  the  testator  was  correctly  informed  of  the  contents  of  the 
instrument  he  was  about  to  execute.  Such  proof  was  made  in 
the  present  case,  and  in  addition  thereto  it  was  proved  that  the 
instrument  was  drawn  in  strict  com[)liance  with  the  instructions 
of  the  testatrix  in  that  behalf. 

In  view  of  the  well-known  fact  that  quite  a  large  percentage 
of  the  people  of  this  State  do  not  understand  the  English  lan- 
guage, and  of  the  probability  that  many  wills  of  such  i)eoi)le, 
written  in  English,  have  been  admitted  to  probate,  we  should 
adopt  the  rule  here  suggested,  even  though  the  argument  against 
it  were  much  stronger  than  it  is.  Otherwise  great  mischief 
might  be  done  by  defeating  the  real  will  of  the  testators,  care- 
fully expressed,  and  duly  verified  in  the  manner  prescribed  by 


744  WILLS. 

statute,  and  by  unsettling  estates  supposed  to  be  settled,  and 
divesting  rights  of  proijeity  believed  to  be  fully  vested.  If  the 
same  circumstance  had  existed  generally  in  this  country  when 
Judge  Redtield  wrote  the  intimation  ahove  mentioned,  we  greatly 
doubt  whether  ho  would  have  thought  that  the  rule  there  sug- 
gested (even  conceding  it  to  be  a  rule  of  the  common  law)  was 
at  all  a[)[)licable  to  the  condition  and  circumstances  of  our 
people. 

Our  conclusion  is  that,  because  the  instrument  in  question  was 
freely  executed  by  the  testtitrix  in  due  form  of  law,  with  full  and 
accurate  knowledge  of  its  contents  and  in  accordance  with  her 
instructions  (she  being  of  sound  mind),  it  was  properly  admit- 
ted to  probate,  and  established  as  her  last  will  and  testament, 
notwithstanding  it  was  written  in  the  English  language,  which 
she  could  not  read  or  understand.  The  judgment  of  the  circuit 
court  is   aflSrmed. 


What  Insanity  on  the  Part  of  the  Testator  will    Avoid 

the  Will. 

Cartwright  v.  Cartwright,  1  Phillimore,  90. 

Sir  William  Wynne.  The  question  in  this  cause  arises 
upon  the  will  of  Mrs.  Armyne  Cartwright,  deceased,  which  has 
been  opposed  and  propounded  on  behalf  of  the  contending 
parties. 

The  will  is  on  all  sides  admitted  to  be  in  the  handwriting  of 
the  deceased  ;  and  it  is  in  these  words  :  — 

"  Wigmore  Street,  August  14,  1775.  I  leave  all  my  fortune 
to  my  nieces,  the  daughters  of  my  late  brother,  Thomas  Cart- 
wright, Esq.,  except  £100  each  to  my  executors,  and  one  year's 
wages  to  my  servants  and  mourning.  I  appoint  Mrs.  Mary 
Catherine  Cartwright,  my  nieces'  mother,  and  Thomas  George 
Skipworth,  Esq.,  of  Newbold  Revel,  in  Warwickshire,  my  exec- 
utors, and  trustees  for  my  nieces  until  they  come  of  age  or 
marry;  if  any  of  them  should  die  sooner,  their  share  to  go  to 
the  survivors  or  survivor.  "  Armyne  Cartwright." 

It  appears  to  have  been  inclosed  and  sealed  up  in  a  cover;  and 
upon  the  back  of  the  cover  is  written  in  the  handwriting  of  the 
deceased,  "  This  is  my  will.  A.  Cartwright."  The  will  is  writ- 
ten in  a  remarkably  fair  hand,  and  without  a  blot  or  mistake  in 
a  single  word  or  letter.  Pleas  have  been  given  in  on  both  sides, 
and  there  is  a  pretty  full  account  of  the  family  and  connections 
of  the  deceased,  and  her  affections,  and  1  think  it  clearly  ap- 
pears the  will  is  as  proper  and  natural  as  she  could  have  made, 


WHAT    INSANITY    WILL    AVOID    THE    WILL.  745 

and    it     is    likewise    as    comfornuible  to  her  affections  at  the 
time.      *     »     * 

The  only  witness  then,  that  has  oriven  any  kind  of  account  of 
the  writing  of  the  will  is  Cliarity  Thoin,  who  was  present  at  the 
time;  there  was  another  witness  of  the  name  of  Gore,  but  she 
is  dead;  therefore  Charity  Thorn  is  the  only  person  who  can 
give  any  account  of  what  passed  ;  and  the  account  she  gives  is 
extremely  material;  for  I  cannot  agree  with  what  was  said  by 
Dr.  Nicholl,  that  this  will  relies  entirely  upon  the  face  of  the 
will  itself,  and  upon  the  evidence  of  Mrs.  Cottrell,  and  the  proof 
of  handwriting  for  its  support.  I  think  the  evidence  of  Charity 
Thorn  goes  very  materially  to  support  it;  her  evidence  is  in 
these  words;  she  says  to  the  15ih  and  IGth  articles  of  the  first 
allegation,  "  That  whilst  the  said  Dr.  Battle  visited  and  attended 
the  said  deceased,  he  desired  the  nurse  and  the  deponent  and  her 
other  servants  to  prevent  her  from  reading  or  writing,  as  he  gave 
it  as  his  opinion  that  reading  and  writing  might  disturb  and  hurt 
her  head  ;  and  in  consequence  thereof  she,  the  said  deceased,  was 
for  some  time  kept  from  the  use  of  books,  pens,  ink,  and  paper; 
that,  however,  some  time  prior  to  the  writing  the  will  in  ques- 
tion in  this  cause,  but  precisely  as  to  time  the  deponent  cannot 
speak,  she,  the  said  deceased,  grew  very  im[)ortunate  for  the  use 
of  pen,  ink,  paper,  and  frequently  asked  for  it  in  a  very 
clamorous  manner;  that  Dr.  Battle  endeavored  to  dissuade  and 
pacify  her,  and  told  her  that  whatever  she  wrote  he  must  appear 
as  a  witness  against,  but  that  if  she  would  wait  till  she  got 
well  he  would  be  a  witness  for  her;  that  the  said  deceased 
continuing  importunate  in  her  desire  to  have  pen,  ink,  and 
paper,  the  said  Dr.  Battle  in  order  to  quiet  and  gratify  her 
consented  that  she  should  have  them,  telling  the  deponent  and 
Elizabeth  Gore,  the  nurse,  that  it  did  not  signify  whatshe  might 
write,  as  she  was  not  fit  to  make  any  pro[)eruseof  pen,  ink,  and 
paper;  that  as  soon  as  Dr.  Battle  had  given  his  permission  that 
she  should  have  pen,  ink,  and  paper,  the  same  were  carried  to 
her ;  and  her  hands,  which  had  been  for  some  time  before  kept 
constantly  tied,  were  let  loose,  and  she,  the  said  deceased,  sat 
down  at  her  bureau  and  desired  this  deponent  and  the  nurse  to 
leave  her  alone  while  she  wrote,  and  they,  to  humor  her,  went 
into  the  adjoining  room,  but  stood  by  the  door  thereof  so  as  they 
could  watch  and  see  the  said  deceased  as  well  as  if  they  had  been 
in  the  same  room  with  her  ;  that  the  said  deceased  at  first  wrote 
upon  several  pieces  of  paper,  and  got  up  in  a  wild  and  furious 
manner  and  tore  the  same,  and  went  to  the  fireplace  and 
threw  the  |)ieces  in  the  grate,  one  after  the  other ;  and 
after     walking    up  and  down  the  room  many  times  in  a  wild 


746  WILLS. 

and  disordered  manner,  muttering  or  speaking  to  herself,  she 
wrote,  as  the  de[)(>nent  helievcs,  lh(3  paper  which  is  the  will  in 
question;  but  the  deponent  fuither  sailli  that  at  the  time  now 
deposed  to  the  said  deceased  liad  not  shown  any  symptoms  what- 
ever of  recovery  from  her  disorder,  and  in  the  deponent's  <)t)inion 
she  had  not  then  sufficient  cajjacity  to  be  able  to  comprehend  or 
recollect  the  state  of  herself,  her  family,  or  her  affairs,  and  dur- 
ing the  time  she  was  occupied  in  writing,  which  was  upwards  of 
an  hour,  she,  by  her  manners  and  gestures,  showed  many  signs 
of  ji  disordered  mind  and  insanity."  She  says  to  the  25th  inter- 
rogatory, *'that  the  deceased  was  occupied  upwards  of  an  hour, 
nearly  two  hours  as  well  as  the  deponent  can  at  this  distance  of 
time  recollect,  in  making  the  will  m  question;  that  is,  from  the 
time  of  the  pen,  ink,  and  pai)er  being  given  her,  until  she  left  off 
writing  ;  that  the  respondent  and  Elizabeih  Gore,  the  nurse,  went 
out  of  the  room  into  the  adjoining  room,  and  left  the  said  deceased 
alone  in  the  room,  but  not  out  of  their  sight ;  that  she  said  she 
was  going  to  write,  but  the  respondent  does  iu)t  recollect  whether 
she  said  she  was  going  to  make  her  will,  but  the  re.'^poadent  under- 
stood that  she  was  writing  a  will ;  that  when  the  said  deceased 
was  left  in  the  room  by  herself  she  was  so  agitated  and  furious 
that  the  respondent  was  very  fearful  she  would  attempt  some 
mischief  to  herself,  but  she  did  not  do  any;  that  a  candle  was 
given  to  the  said  deceased  to  seal  what  she  had  written,  but  the 
respondent  cannot  recollect  what  length  of  time  the  candle  was 
by  her;  that  the  respondent  and  also  the  nurse  weie  always 
cautious  of  trusting  a  candle  near  the  said  deceased,  but  on  this 
occasion  they  did  permit  her  to  have  a  candle  notwithstandmg 
she  showed  many  nuirks  of  derangement  and  insanity  at  the  time, 
this  respondent  and  the  nurse  being  at  hand  and  watching  her  to 
prevent  any  mischief  ;  that  the  said  deceased  seemed  very  ear- 
nest in  what  she  was  al>out,  but  by  no  means  closely  settled,  as 
whilst  she  was  writing  she  frequently  started  up  and  walked  up 
and  down  the  room  in  an  agitated  manner;  that  it  was  not  cus- 
tomary to  untie  the  said  deceased's  hands,  or  to  leave  her  alone 
when  she  desired  it,  at  times  when  she  was  greatly  agitated  and 
disordered,  although  sometimes  in  consequence  of  l>er  earnest 
entreaties  the  respondent  and  the  nurse  would  untie  her  for  a 
little,  and  on  the  occasion  now  particularly  deposed  to  she  was 
so  untied  in  consequence  of  the  jiermission  which  Dr.  Battie  had 
given  her  to  have  pen,  ink,  and  paper,  but  she  was  not  left 
alone,  as  the  deponent  and  the  nurse  stood  at  the  door  of  an  ad- 
joining room  behind  the  said  deceased,  but  not  above  two  or 
three  yards  distant  from  the  bureau  where  she  sat  to  write." 
The  fact  then,  as  it  appears  by  the  evidence  of  this  witness,  is, 


WHAT    INSANITY    WILL    AVOIO    THE    WILL.  747 

that  the  j)a|)er  was  written  by  the  testatrix  herself,  no  other  per- 
son being  present  but  tlie  witness  who  gives  the  aceouiit  and 
Elizabeth  Gore  who  is  since  dead,  neither  of  whom  gave  her  any 
manner  of  a-sistanee;  and  siie  tells  yon,  that  the  deceased  hav- 
ing first  of  all  shown  great  eagerness  and  anxiety  for  pen,  ink, 
and  paper,  did  write  this  will  the  moment  she  obtained  them 
without  any  assistance  from  anyone;  but  it  is  said  that  the  con- 
dition of  the  deceased  at  this  time  was  such  that  she  was  utterly 
incapable  of  doing  thit  or  any  other  legal  act,  because  it  must  be 
rational.  They  have  certainly  completely  j)roved  that  the  de- 
ceased was  early  afflirted  with  the  disorder  of  her  mind,  I  think 
about  the  year  1759,  and  she  continued  under  the  influence 
of  that  di>order  pretty  near  two  years,  and  after  that  she 
returned  to  her  father's  house  being  8up[)osed  to  be  per- 
fectly recovered,  and  that  she  continued  to  reside  there  from 
that  time  to  his  death;  that  after  that  being  in  possession 
of  her  fortune  she  went  al)out  the  year  1768  to  housekeeping 
herself,  and  continued  so  to  do  as  a  rational  person  till  1774, 
and  in  the  month  of  November  in  that  year  she  went  on  a  visit 
to  her  relation.  Lord  Macclesfield,  at  Shirburn  in  Oxfordshire; 
that  on  the  2(3ih  of  November  she  returned  to  London  in  a  dis- 
ordered and  disturbed  state;  at  first  she  was  attended  by  a  phy- 
sician. Dr.  Fotheigill,  who  found  it  was  a  disorder  of  the  mind, 
and  what  he  had  not  directed  his  attention  or  study  to.  It  is 
I)roved  that  in  the  latter  end  of  January  or  beginning  of  Febru- 
ary, 1775,  Dr.  Baltic  was  calkd  in,  and  he  treated  her  as  an 
insane  person,  and  sent  a  nurse  to  take  care  of  her  in  the  way 
they  always  do  send  nurses  to  patients  disordered  in  mind.  In 
general  her  lial)it  and  condition  of  body  and  her  manner  for  sev- 
eral months  before  the  date  of  the  will  was  that  of  a  person 
afiiicted  with  many  of  the  worst  symptoms  of  that  dreadful  dis- 
order, and  continued  so  certainly  after  making  the  will,  which 
was  the  14th  of  August,  1775.  They  have  certainly  made  out 
that.  Now  what  is  the  legal  effect  of  such  proof  as  this?  Cer- 
tainly not  wholly  to  incapacitate  such  a  person,  and  to  say  a  per- 
son who  is  proved  to  be  in  such  a  way  was  totally  and  neces- 
sarily incapacitated  from  making  a  legal  will.  I  take  it  the  rule  of 
the  law  of  England  is  the  lule  of  the  civil  law  as  laid  down  in 
the  second  book  of  the  Institutes  (Inst.  Lib.  2,  tit.  12,  sec.  2) 
"  furiosi  autem  si  i)cr  id  teinpus  fecerint  testamentum  qi'<)  fur^r 
corum  intermissns  est,  juie  te->tati  esse  videntur."  There  is  no 
kind  of  doubt  of  it,  and  it  has  been  admitti^l  that  is  the  |)rin<-i- 
ple.  If  you  can  establish  that  the  party  afflicted  habit  ually  by 
a  malady  of  the  mind  has  intermissions,  and  if  there  was  an  in- 
termission   of    the   disorder  at  the  time  of  the  act,  that  being 


748  WILLS. 

proved  is  siifEcient,  and  tho  general  habitual  insanity  will  not 
affect  it;  but  tlie  effect  of  it  is  this,  it  inverts  the  order  of  proof 
and  of  })resumption,  for,  until  proof  of  habitual  insanit}'  is  made, 
the  presumption  is  that  the  party  aj^ent  like  all  human  creatures 
.was  rational;  but  where  an  habitual  insanity  in  the  mind  of  the 
person  who  does  the  act  is  established,  there  the  party  who 
would  take  advantage  of  the  fact  of*  an  interval  of  reason  must 
prove  it;  that  is  thehiw;  so  that  in  all  these  cases  tho  question  is 
whether,  admitting  habitual  insanity,  there  was  a  lucid  interval  or 
not  to  do  the  act.  Now  I  think  the  strongest  and  best  proof  that 
can  arise  as  to  a  lucid  interval  is  that  which  arises  from  tho  act 
itself;  that  1  look  upon  as  a  thing  to  bo  lirst  examined  and  if  it 
can  be  proved  and  established  that  it  is  a  rational  act  rationally 
done  the  whole  case  is  proved.  What  can  you  do  more  to  estab- 
lish the  act?  because  suppose  you  are  able  to  show  tiie  party  did 
that  which  appears  to  be  a  rational  act,  and  it  is  his  own  act  entire- 
ly, nothing  is  left  to  presumption  in  order  to  prove  a  lucid  inter- 
val. Here  is  a  rational  act  rationally  done.  In  my  apprehension, 
where  you  are  able  completely  to  establish  that,  the  law  does  not 
require  you  to  go  further,  and  the  citation  from  Swiiibui'ne  docs 
state  it  to  be  so.  The  manner  he  has  laid  down  is  (it  is  in  tho 
part  in  which  he  treats  of  what  persons  may  make  a  will),  says 
he,  the  last  observation  is,  "  If  a  lunatic  person,  or  one  that  is 
beside  himself  at  some  times  but  not  continually,  make  his  tes- 
tament, and  it  is  not  known  whether  the  samo  were  made  while 
he  was  of  sound  mind  and  memory  or  no,  then,  in  case  the  tes- 
tament be  so  conceived  as  thereby  no  argument  of  phrensy  or 
folly  can  be  gathered,  it  is  to  be  presumed  that  the  same  was 
made  during  the  time  of  his  calm  and  clear  intermissions,  and  so 
the  testament  shall  be  adjudged  good,  yea,  although  it  cannot  be 
proved  that  the  testator  useth  to  have  any  clear  and  quiet  inter- 
missions at  all,  yet  nevertheless  I  suppose  that  if  the  testament 
1)6  wisely  and  orderly  framed  the  same  ought  to  be  accepted  for 
a  lawful  testament."  Unquestionably  there  must  bo  a  complete 
and  absolute  proof  the  party  who  had  so  formed  it  did  it  without 
any  assistance.  If  the  fact  be  so  that  he  has  done  as  rational  an 
act  as  can  be  without  any  assistance  from  another  person,  what 
there  is  more  to  be  proved  I  don't  know,  unless  the  gentlemen 
could  prove  by  any  authority  or  law  what  the  length  of  the 
lucid  interval  is  to  be,  whether  an  hour,  a  day,  or  a  month; 
I  know  no  such  law  as  that;  all  that  is  wanting  is  that 
it  should  be  of  sufficient  length  to  do  the  rational  act  in- 
tended ;  I  look  upon  it  if  you  are  able  to  establish  the  fact 
that  the  act  done  is  perfectly  proper,  and  that  the  party  who  is 
alleged  to  have  done  it  was  free  from  the  disorder  at  the  time. 


WHAT    INSANITY    WILL    AVOID    THE    WILL.  749 

that  is  completely  sutiSeieiit.  Wh:it  does  appear  to  be  the  case 
from  the  evi<lence  of  these  witnesses?  As  to  Charity  Thom, 
who  seems  {a  iiK;  to  be  th(!  principal  witness,  she  sjives  an  opin- 
ion of  her  own,  ami  that  opinion  is  ai»;ainst  the  validity  of  the 
act,  and  she  expicvssly  says  over  and  over  that  the  deceased  at>' 
the  time  this  was  done  was  not  sane  and  was  not  capable  of 
knowinof  what  she  did;  that  is  the  result  of  her  evidence.  The 
court,  however,  does  not  depend  upon  the  opinion  of  witnesses, 
but  upon  the  facts  to  which  they  depose.  All  the  facts  which 
are  deposed  to  (it  does  ap|)('ar  to  me)  are  sane;  the  witness' 
opinion  arisini;  from  her  obsei  vations  does  not  give  any  founda- 
tion at  all  for  saying  the  testatrix  was  insane  at  the  time  of  mak- 
ing the  will;  her  ()i)inion  that  the  deceased  was  insane  at  such 
time  was  f()uuded  on  bodily  affections  which  were  extraneous. 
What  is  the  fact?  8he  says  that  the  deceased  whilst  employed 
about  the  act  rose  frequently  and  walked  backwards  and  for- 
wards about  the  room,  that  she  did  not  set  down  closely  to  the 
business,  that  she  started  up,  and  that  slie  tore  several  papers 
and  threw  the  pieces  into  the  grate,  then  wrote  others,  and  did 
not  a[)pear  to  her  to  act  in  such  a  way  as  a  person  who  was  calm 
would  do.  In  my  apprehension,  it  appeals  from  this  account  her 
manner  of  doing  it  was  this  :  she  wrote  several  papers,  and  if  she 
saw  any  mistake  whatever  trifling  she  was  dissatisfied  and  prob- 
ably vexed  she  did  not  write  in  such  a  way  as  fairly  to  answer  her 
own  intention;  the  paper  itself  has  no  mark  of  irritation;  a  more 
steady  performance  1  never  saw  in  my  life  ;  and  it  seems  hardly 
consistent  that  a  person  wild  and  furious  and  in  such  a  degree 
of  insanity  as  she  is  stated  to  be  should  write  in  such  a  way.  It 
seems  to  me  a  very  extraordinary  thing,  but  whatever  outward 
ap[)earance  there  was  it  had  no  effect  on  the  writing  itself;  she 
has  wrote  it  without  a  single  mistake  or  blot  or  anything  like  it. 
What  is  the  construction?  that  she  was  endeavoring  to  write  her 
will,  which  she  had  taken  a  determination  to  do  ;  that  she  made 
mistakes  and  destroyed  those  papers  in  which  she  had  made 
them,  that  she  knew  how  to  correct  them,  and  did  correct  them, 
and  at  length  wrote  and  finished  as  complete  a  paper  as  any  i)erson 
in  England  coidd  have  done.  Is  this  insanity?  In  my  appre- 
hension, it  is  not ;  if  seems  to  me  she  was  vexed  at  her  mistakes, 
which  I  think  shows  that  she  had  at  that  time  her  senses  about 
her,  and  1  think  it  appears  likewise  she  was  not  then  in  fact  in 
the  disturbed  condition  she  was  before  and  after.  They  say 
they  were  generally  forced  to  keep  the  strait  waistcoat  upon  her, 
that  even  then  she  would  thrust  out  her  arms  if  she  could, 
and  strive  to  thrust  her  fingers  in  their  eyes,  and  in  short  do 
everything   that  would  do  mischief.     Is  there  any  mischief  in 


750  WILLS. 

the  present  case  when  the  strait  waistcoat  is  taken  off?  Nothing 
like  it;  as  soon  as  it  is  taken  off  she  says,  "  Give  nie  pen,  ink, 
and  paper  ;  "  and  when  it  is  given  her  she  says,  "  Leave  nie,  for 
I  am  going  to  write  ;  "  and  they  go  out  of  the  room  ;  she  is  not 
disturbed  at  their  watching  her,  but  pursues  her  own  intention 
and  completes  the  paper;  she  inquires  the  day  of  the  month, 
and  an  almanack  is  given  to  her  by  one  of  the  nurses  who  was 
watching  her,  and  the  day  of  the  month  was  pointed  out  to 
her;  she  then  calls  for  a  candle;  and  they  say  they  used  to 
be  cautious  not  to  trust  her  with  a  candle,  and  were  forced 
to  hold  it  at  a  distance  from  her  if  she  read  the  newspaper; 
but  still  in  this  case  they  give  her  a  candle  that  she  may 
use  it  in  order  to  seal  the  paper;  no  harm  was  done  of 
any  kind,  and  none  attempted;  everything  that  was  done  was 
for  the  purpose  of  completing  the  act;  and  am  I  to  conclude  she 
was  insane,  because  she  might  have  bodily  affections,  irritations  of 
nerves,  when  everything  which  was  rational  is  done,  and  as  collect- 
edly and  exactly  as  any  i)erson  of  the  clearest  sense  would  have 
done,  and  of  her  own  head  entirely.  The  gentlemen  have  said  all 
this  is  mere  form.  Is  it  mere  form  that  a  person  so  situated  as 
she  was  should  of  her  own  accord  write  a  will  containing  the  most 
rational  disposition  of  her  property,  leaving  all  her  fortune  to  her 
nieces,  the  daughters  of  her  deceased  brother  who  were  the  most 
natural  to  her,  omitting  her  nephew  who  was  possessor  of  a  large 
fortune?  Is  it  a  mere  form  that  she  should  appoint  for  her  execu- 
tors and  trustees  the  mother  of  those  nieces,  and  her  nearest  rela- 
tion by  the  father's  side,  describing  accurately  the  place  where  he 
lived,  and  that  she  should  create  a  survivorship  amongst  them  if 
any  should  die  before  twenty-one?  Is  this  only  form?  It  is  the 
very  essential  part  and  sul)Stance  of  a  will,  and  that  will  as  rational 
a  will  as  she  or  any  other  person  could  have  made.  Therefore, 
taking  the  fact  to  be  that  it  was  done  of  her  own  accord,  it  leaves 
nothing  to  be  proved;  that  being  established  puts  the  matter 
beyond  all  possibility  of  doubt,  and  I  think  there  can  be  no  ques- 
tion but  that  she  had  a  legal  capacity;  but,  say  they,  we  can 
hardly  admit  this  is  quite  such  a  paper  as  it  appears,  and  that  it 
is  the  mere  spontaneous  act  of  the  testatrix  herself  ;  they  surmise 
and  to  be  sure  it  is  as  groundless  a  surmise  in  point  of  evidence 
as  possible,  that  it  was  done  at  the  suggestion  of  Mrs.  Cottrell, 
but  it  appears  that  she  was  at  that  time  out  of  town  and  had  been 
so  for  a  month  before ;  but  is  the  court  to  suppose  that  with- 
out evidence,  and  is  there  anything  to  support  it?  certainly  not, 
and  I  cannot  presume  any  such  thing.  If  you  have  a  mind  to 
prove  this  was  by  the  suggestion  of  Mrs.  Cottrell,  you  may;  if 
you  do  not,  I  must   take  it  to  be,  what  it  appears  from  the  evi- 


PROOF    OF    PUBLICATION    OF    WILL.  751 

dence,  i\n\    j)uie   and  spontaneous  act  of  the  i)arty  herself,  and 
that  Mrs.  Cottrell   knew   nothing  of  it  till  she  was  imforraetl  of 

I  am  of  opinion  in  thia  case  that  the  deceased  by  herself  writ- 
ing the  will  now  before  the  court  hath  most  plainly  shown  she  had 
a  full  and  complete  capacity  to  understand  what  was  the  state  of 
her  affairs  and  her  relations,  and  to  give  what  was  proper  in  the 
way  she  has  done.  She  not  only  formed  the  plan,  but  [)ursued 
and  carried  it  into  execution  with  propriety  and  without  assist- 
ance. In  my  ap})rehension  that  would  have  been  alone  sufficient, 
but  it  is  iurthei  affirmed  by  the  recognition  and  the  delivery  of 
the  will.  Therefore,  under  all  these  circumstances  I  have  no 
doubt  in  pronouncing  this  to  be  the  legal  will  of  the  deceased. 


Proof  of  Publication   of  Will. 

In  re  Hunt's  Will,  110  N.  Y.  278;   18  N.  E.  106. 

Gray,  J.  Probate  of  the  will  of  the  deceased  was  refused, 
and  the  will  rejected  by  the  surrogate,  for  the  reason  that  it  was 
not  executed  and  attested  in  the  manner  prescribed  by  law  for 
the  execution  and  attestation  of  last  wills  and  testaments.  His 
decree  was  reversed  by  the  general  term,  and  as  it  is  stated  in 
the  body  of  the  judgment  appealed  from  to  this  court  that  the 
reversal  was  upon  questions  of  fact  as  well  as  questions  of  law, 
we  are  called  upon  to  examine  the  facts,  and  to  determine  them 
for  ourselves.  They  are  few  and  not  conflicting,  and  establish 
that  the  instrument  offered  for  probate  as  the  will  of  the  deceased 
was  wholly  in  his  handwriting,  as  was  also  the  attestation  clause 
which  was  signed  by  the  witnesses,  and  that  the  will  was  signed 
by  the  deceased.  The  attestation  clause  was  as  follows  :'  ♦'  We, 
the  undersigned  witnesses,  have  signed  the  within  in  the  presence 
of  each  other,  and  of  the  testator,  who  acknowledged  it  to  be  his 
last  will  and  testament."  It  is  insisted  that  there  is  no  proof 
that  the  subscription  to  the  will  by  the  testator  was  made  in  the 
presence  of  the  witnesses,  or  that  it  was  acknowledged  by  him  to 
have  been  m;ide  to  each  of  the  attesting  witnesses.  The  recollec- 
tion of  the  two  witnesses  as  to  the  transaction  was  imperfect ; 
but  each  testified,  however,  in  substance,  that  the  circumstances 
must  have  been  as  stated  in  the  attestation  clause,  or  he  would 
not  have  signed  it.  It  is  not  pretended  that  there  is  any  ground 
for  rejecting  the  will,  except  that  it  was  not  executed  in  exact 
compliance  with  the  statutory  provisions  referred  to.  The  stat- 
ute has  surrounded  the  execution  of  wills  with  certain  formali- 
ties in  order  to  prevent  imposition,  undue  influence,  and  fraud; 


752  WILLS. 

but  it  is  well  settled  by  authority  that  a  substantial  compliance 
with  the  statute  is  nivvays  sutEciont.  No  particular  form  of 
words  is  required  or  necessary  to  effect  puhlication.  Lane  v. 
Lane,  95  N.  Y.  494.  And  recently  in  Re  Beckett,  103  N.  Y. 
167  ;  8  N.  E.  Rep.  506,  a  case  of  holouraphic  will,  so  close  and 
severe  a  criticism  of  th(»  terms  and  manner  of  publication  was 
considered  needless.  We  have  here  a  testamentary  disposition 
of  the  estate,  which  the  witnesses  recognized  to  be  in  the  hand- 
writing of  deceased,  signed,  unquestionably,  by  him  ;  and  an 
attestation  clause,  also  in  the  handwriting  of  deceased,  signed  by 
them,  which  states  it  was  signed  by  thom  in  the  presence  of  each 
other,  and  of  the  testator,  and  that  the  testator  acknowledged 
the  instrument  to  be  his  last  will  and  testament.  The  only  sup- 
posed doubt  as  to  the  matter  is  cast  by  the  inability  of  the  wit- 
nesses to  recollect  precisely  what  took  place  in  detail.  We  think 
that  it  is  a  sufficient  com[)liance  with  the  statutory  requirements 
if,  in  some  way  or  mode,  the  testator  indicates  that  the  instru- 
ment the  witnesses  are  requested  to  subscribe  as  such  is  intended 
and  understood  by  him  to  be  his  executed  will.  In  probate  cases 
the  courts  should  look  to  the  substance  of  the  transaction,  and 
see  that  there  was  no  opportunity  for  imposition  or  fraud. 
This  will  must  have  been  [)resented  to  the  witnesses  by  the  tes- 
tator for  them  to  sign,  and  such  an  act  was  equivalent  to  a  com- 
munication by  him  that  he  intended  to  give  effect  to  the  paper 
as  his  will.  If  the  paper  was  signed  in  the  presence  of  the  wit- 
nesses, that  act  was  a  sufficient  compli;inco  with  tiie  statute  as  to 
acknowledgment  of  the  subscription.  If  signed  before  being 
presented  to  them,  the  exhibition  of  the  paper,  with  his 
acknowledgment  that  it  was  his  last  will  and  testament,  was  a 
sufficient  acknowledgment  of  the  signature  and  publication 
of  the  will,  within  the  rule  laid  down  by  this  court  in  Re 
Phillips,  98  N.  Y.  267.  In  the  case  of  Lewis  v.  Lewis,  11  N.  Y. 
220,  cited  by  the  surrogate,  it  appeared  affirmatively  by  the 
witnesses  that  the  paper  was  so  folded  that  they  did  not  see  any 
subscription,  and  that  testator  only  said  that  "  I  declare  the 
within  to  be  my  free  will  and  deed."  Such  affirmative  proof  of 
what  took  place  brought  the  case  clearly  within  the  operation  of 
the  statute,  and  invalidated  the  execution.  In  that  same  case, 
however,  Allen,  J.,  said:  "  Mere  want  of  recollection  on  the 
part  of  the  witnesses  will  not  invalidate  the  instrument,  and  in 
the  cases  cited  by  counsel  the  courts  establishing  the  wills  pro- 
pounded have  done  so  upon  the  ground  that  they  were  satisfied 
from  the  circumstances  proved  that  the  wills  were  duly  executed, 
and  that  the  witnesses  had  forgotten,  thus  relieving  the  parties 
interested  against  the  infirmities  of  humanity  and  the  uncertainty 


PROOF   OF   PUBLICATION   OF   WILL.  753 

of  human  recollection."  The  attestation  clause  here  is  entirely 
conssi.stent  with  the  execution  of  the  paper  hy  testator  in  the 
l)re8ence  of  the  witnesses,  and  nothing  in  the  circumstances  of 
this  case  pointing  to  any  fraud  or  undue  influence,  and  none 
being  charged,  we  think  the  jn-esumption  should  prevail  that  all 
formalities  have  been  observed,  and  we  therefore  are  disposed  to 
sustain  rather  than  to  reject  this  testament,  for  we  feel  satisfied 
that  it  was  duly  executed  and  published. 

The  appellant  further  insists  tliat  the  general  term,  upon  re- 
versing the  decree  of  the  surrogiite,  should  have  ordered  a  jury 
trial  of  the  material  questions  of  fact  arising  upon  the  issues,  and 
cites  section  2588  of  the  Code  of  Civil  Procedure  in  support  of 
his  point.  That  section  provides  that  "  where  the  reversal  of 
a  decree  by  the  appelhile  court  is  founded  upon  a  question  of 
fact,  the  appellate  court  must,  if  the  appeal  was  taken  from  a 
decree  made  upon  a  })etition  to  admit  a  will  to  probate,  or  to 
revoke  the  probate  of  a  will,  m;ike  an  order  directing  the  trial  by 
a  jury  of  the  material  questions  of  fact  arising  upon  the  issues 
between  the  parties."  We  do  not  think  this  provision  applies  to 
this  case,  and  it  was  proper  for  the  supreme  court  to  adjudge  as 
it  did.  Although  the  judgment,  as  amended,  stated  that  the 
decree  of  the  surrogate  was  reveised  by  the  geneial  term,  upon 
questions  of  fact  as  well  as  questions  of  law,  we  cunuot  regard 
that  as  controlling  on  the  point  raised.  We  do  not  find  that  the 
reversal  was  dependent  U|)on  conflicting  evidence.  There  was  no 
conflict  of  facts  at  all.  The  only  evidence  was  given  l»y  the  two 
witnesses  to  the  will.  There  was  no  difl^erence  between  the  surro- 
gate and  the  general  term  of  the  8U[)reme  court  as  to  any  ques- 
tion of  fact,  and  there  could  be  no  issue  for  a  jury.  The  two 
courts  only  differed  in  the  conclusion  to  be  drawn  from  the  facts, 
and  that  presents  simply  a  question  of  law.  For  equivalent  rea- 
sons this  court,  in  Re  Martin,  98  N.  Y.  193,  a  case  probably 
overlooked  l)y  counsel,  held  that  "the  appeal  to  the  supreme 
court  was  not  governed  by  section  2588  or  by  Sutton  v. 
Ray,  72  N.  Y.  482,"  on  which  the  appellant  also  relies  in 
this  case.  It  was  there  said  that  "  they  only  applied  when  the 
reversal  is  founded  upon  a  question  of  fact."  We  think  the 
statute  'ihould  receive  a  reasonable  construction,  and  that  literal 
obedience  is  not  to  be  given  to  its  language  where  it  would 
work  an  unreasonable,  if  not  absurd,  result.  The  language  in 
this  section  requires  an  order  for  a  jury  trial  only  where  the 
reversal  ♦'  is  founded  upon  a  question  of  fact;  "  and  the  legislature 
undoubtedly  intended  that  only  where  such  was  actually  the  case, 
and  there  wa^  a  real  conflict  of  evidence,  and  the  surrogate's  court 
and  the  supreme  court  differed  on  the  case,  should  the  conflict  be 

48 


754  WILLS. 

settled  by  a  jury  trial  in  the  mode  prescribed ;  but  th:it  a  new  trial 
before  a  jury  should  be  deemed  necessary,  where  there  is  no  con- 
flict in  the  facts,  and  the  matter  is  one  of  the  conclusion  from 
the  facts,  is  not  a  construction  reconcilable  with  reason,  and  we 
should  refuse  our  sanction  to  such  a  construction.  The  inser- 
tion in  the  decree  of  the  statement  as  to  tlio  grounds  of  the  re- 
versal, I  think,  we  are  not  bound  to  take  in  the  sense  given 
to  it  by  the  appellant,  but  should  reiraid  it  simply  as  the  war- 
rant, under  section  1338,  for  our  examination  of  the  facts  of 
the  case.  The  judgment  appealed  from  was  proper,  and  should 
be  affirmed,  with  costs.     AH  concur. 


Effect  of  Murder  of  a  Testator  by  a  Devisee  on  Latter's  Rights 

Under  the  Will. 

Riggs  V.  Palmer,  115  N.  Y.  50G;   22  N.  E.  189. 

Earl,  J.  On  the  13th  day  of  August,  1880,  Francis  B. 
Palmer  made  his  last  will  and  testament,  in  which  he  gave  small 
legacies  to  his  two  daughteis,  Mrs.  Riggs  and  Mrs.  Preston,  the 
plaintiffs  in  this  action,  and  the  remainder  of  his  estate  to  his 
grandson,  the  defendant  Elmer  E.  Palmer,  subject  to  the  sup- 
port of  Susan  Palmer,  his  mother,  with  a  gift  over  to  the  two 
daughters,  subject  to  the  support  of  Mrs.  Palmer  in  case  Elmer 
should  survive  him  and  die  under  age,  unmarried,  and  without 
any  issue.  The  testator,  at  the  date  of  his  will,  owned  a  farm, 
and  considerable  personal  property.  He  was  a  widower,  and 
thereafter,  in  March,  1882,  he  was  married  to  Mrs.  Bresee,  with 
whom,  before  his  marriage,  he  entered  into  an  antenuptial  con- 
tract, in  which  it  was  agreed  that  in  lieu  of  dower  and  all  other 
claims  upon  his  estate  in  case  she  survived  him  she  should  have 
her  support  upon  his  farm  during  her  life,  and  such  support  was 
expressly  charged  upon  the  farm.  At  the  date  of  the  will,  and 
subsequently  to  the  death  of  the  testator,  Elmer  lived  with  him 
as  a  member  of  his  family,  and  at  his  death  was  16  years  old. 
He  knew  of  the  provisions  made  in  his  favor  in  the  will,  and, 
that  he  might  prevent  his  grandfather  from  revoking  such  pro- 
visions, which  he  had  manifested  some  intention  to  do, 
and  to  obtain  the  speedy  enjoyment  and  immediate  posses- 
sion of  his  property,  he  willfully  murdered  him  by  poisoning 
him.  He  now  claims  the  property,  and  the  sole  question  for  our 
determination  is,  can  he  have  it? 

The  defendants  say  that  the  testator  is  dead;  that  his  will  was 
made  in  due  form,  and  has  been  admitted  to  probate;   and  that 


EFFECT    OF    MtJKDEIl    OF    A    TKSTATOR    15V    A    DEVISEE.  /.)5 

therefore  it  must  liav<!  effect  nccordiiii^  to  the  letter  of  the  law. 
It  is  quite  true  that  statutes  regulating  the  making,  proof,  and 
effect  of  wills  and  the  devolution  of  pro[)erty,  if  literally  con- 
strued, and  if  tlieir  force  and  effect  can  in  no  way  and  under  no 
circumstances  he  controlled  or  modified,  give  this  property  to  the 
murderer.  The  puipose  of  those  statutes  was  to  enable  testaiors 
to  dispose  of  their  estates  to  the  objects  of  their  bounty  at  deal  h, 
and  to  carry  into  effect  their  final  wishes  legally  ex[)ressed ;  and 
in  considering  and  giving  effect  to  them  this  })uri)ose  must  be 
kept  in  view.  It  was  the  intention  of  the  law-makers  that  the 
donees  in  a  will  should  have  the  property  given  to  them.  But 
it  never  could  have  been  their  intention  that  a  donee  who  mur- 
dered the  testator  to  make  the  will  operative  should  have  any 
benefit  under  it.  If  such  a  case  had  been  present  to  their  minds, 
and  it  had  been  supposed  necessary  to  make  some  provision  of 
law  to  meet  it,  it  c;innot  be  doubted  that  they  would  have  pro- 
vided for  it.  It  is  a  familiar  canon  of  construction  that  a  thing 
which  is  within  the  intention  of  the  makers  of  a  statutes  is  as 
much  within  the  statute  as  if  it  were  wiihinthe  letter;  and  a 
thing  which  is  within  the  letter  of  the  statute  is  not  within  the 
statute  unless  it  be  within  the  intention  of  the  makers.  The 
writers  of  laws  do  not  always  express  their  intention  perfectly, 
but  either  exceed  it  or  fall  short  of  it,  so  that  judges  are  to  col- 
lect it  from  probable  or  rational  conjectures  only,  and  this  is 
called  "  rational  interpretation;"  and  Rutherford,  in  his  Insti- 
tutes (page  420),  says  :  "  Where  we  make  use  of  rational  inter- 
l)relation,  sometimes  we  restrain  the  meaning  of  the  writer  so 
as  to  take  in  less,  and  sometimes  we  extend  or  enlarge  his 
meaning  so  as  to  take  in  more,  than  his  words  express."  Such 
a  construction  ought  to  be  put  upon  a  statute  as  will  best 
answer  the  intention  which  the  makers  had  in  view,  for  qui 
hmret  inlitera^luvrel  in  cortice.  In  Bae.  Abr.  '*  Statutes,"  1, 
5;  Puff.  Law.  Nat.  bk.  5,  c.  12;  Ruth.  Inst.  422,  427,  and  in 
Smith's  Commentaries,  814,  many  ca-es  are  mentioned  wheie 
it  was  held  that  matters  embraced  in  the  general  words  of 
statutes  nevertheless  were  not  within  the  statutes,  because  it 
could  not  have  been  the  intention  of  the  law-makers  that  they 
should  be  included.  They  were  taken  out  of  the  statutes  by 
an  equitable  construction;  and  it  is  said  in  Bacon:  "By  an 
equitable  construction  a  case  not  within  the  letter  of  a  statute 
is  sometimes  holden  to  be  within  the  meaning,  because  it  is 
within  the  mischief  for  which  a  remedy  is  provided.  The 
reason  for  such  construction  is  that  the  law-makers  could  not 
set  down  every  case  in  express  terms.  In  order  to  form  a  rio-ht 
judgment  whether  a  case  be  within  the  equity  of  a  statute,  it  is 


756  WILLS. 

a  good  way  to  suppose  the  law- maker  present,  and  that  you 
have  asked  him  this  question:  Did  you  intend  to  conii)iehend 
this  case?  Then  you  must  give  yourself  such  answer  as  you 
imagine  he,  being  an  upright  and  reasonahio  man,  would  have 
given.  If  this  be  that  he  did  mean  to  comprehend  it,  you  may 
safely  hold  the  case  to  be  within  the  equity  of  the  statute;  for 
while  you  do  no  more  than  ho  would  have  done,  you  do  not  act 
contrary  to  the  statute,  but  in  conformity  thereto."  9  Bac.  Abr. 
248.  In  some  cases  the  letter  of  a  legislative  act  Is  restrained  by 
an  equitable  construction;  in  others,  it  is  enlarged;  in  others, 
the  construction  is  contrary  to  the  letter.  The  equitable  con- 
struction which  restrains  the  letter  of  a  statute  is  defined  by 
Aristotle  as  frequently  quoted  in  this  manner:  ^Eqniias  est 
Gorreclio  legis  generaliter  latoe  qua  parte  deficit.  If  the  law- 
makers could,  as  to  this  case,  he  consulted,  would  they  say  that 
they  intended  by  their  general  language  that  the  property  of  a 
testator  or  of  an  ancestor  should  pass  to  one  who  had  taken  his 
life  for  the  express  purpose  of  getting  his  property?  In  1  Bl. 
Comm.  91,  the  learned  author  speaking  of  the  construction  of 
statutes,  says:  "If  there  arise  out  of  them  collaterally  any 
absurd  consequences  manifestly  contradictory  to  common  rea- 
son, they  are  with  regard  to  those  collateral  consequences 
void.  *  *  *  Where  some  collateral  matter  arises  out  of  the 
general  words,  and  happens  to  be  unreasonable,  there  the  judges 
are  in  decency  to  conclude  that  this  consequence  was  not  fore- 
seen by  the  parliament,  and  therefore  they  are  at  liberty  to 
expound  the  statute  by  equity,  and  only  ^-Moac?  Aoc disregard  it;  " 
and  he  gives  as  an  illustration,  if  an  act  of  parliament  gives  a 
man  power  to  try  all  causes  that  arise  within  his  manor  of  Dale, 
yet,  if  a  cause  should  ^irise  in  which  he  himself  is  party,  the  act 
is  construed  not  to  extend  to  that,  because  it  is  unreasonable 
that  any  man  should  determine  his  own  quarrel.  There"was  a 
statute  in  Bolognathat  whoever  drew  bh)od  in  the  streets  should 
be  severely  punished,  and  yet  it  was  held  not  to  apply  to  the 
case  of  a  barber  who  opened  a  vein  in  the  street.  It  is  com- 
manded in  the  decalogue  that  no  work  shall  be  done  upon  the 
Sabbath,  and  yet  giving  the  command  a  rational  interpre- 
tation founded  upon  its  design  the  Infallible  Judge  held  that 
it  did  not  prohibit  works  of  necessity,  charity,  or  benevolence 
on  that  day. 

What  could  be  more  unreasonable  than  to  suppose  that  it 
was  the  legislative  intention  in  the  general  laws  passed  for  the 
orderly,  peaceable,  and  just  devolution  of  property  that  they 
should  have  operation  in  favor  of  one  who  murdered  his  ancestor 
that   he  might  speedily  come  into  the  possession  of  his  estate? 


EFFECT    OF    MURDER    OF    A    TESTATOR    BY    A    DEVISEE.         757 

Such  an  intention  is  inconceivable.  We  need  not,  therefore,  be 
much  troubled  by  the  general  language  contained  in  the  laws. 
Besides,  all  laws,  as  well  as  all  contracts,  may  be  controlled  in 
their  o[)eration  and  effect  by  general,  fundamental  maxims  of 
the  common  law.  No  one  shall  be  permitted  to  profit  by  his 
own  fraud,  or  to  take  advantage  of  his  own  wrong,  or  to  found 
any  claim  upon  his  own  iniquity,  or  to  acquire  property  by  his 
own  crime.  These  maxims  are  dictated  by  public  policy,  have 
their  foundation  in  universal  law  administered  in  all  civilized 
countries,  and  have  nowhere  been  superseded  by  statutes.  They 
were  applied  in  the  decision  of  theca^eof  Insurance  Co.  v.  Arm- 
strong, 117  U.  S.  599;  6  Sup.  Ct.  Tlep.  877.  There  it  was  held 
that  the  person  who  procured  a  policy  upon  the  life  of  another, 
payable  at  his  death,  and  then  murdt-red  the  assured  to  make  the 
])olicv  payable,  could  not  recover  thereon.  Mr.  Justice  Field, 
writing  the  opinion,  said:  "  Independently  of  any  proof  of  the 
motives  of  Hunter  in  obtaining  the  policy,  and  even  assuming 
that  they  were  just  and  proper,  he  forfeited  all  rights  under  it 
when,  to  secure  its  immediate  payment,  he  murdered  the  assured. 
It  would  be  a  reproach  to  the  jurisprudence  of  the  country  if  one 
could  recover  insurance  money  payable  on  the  death  of  a  party 
whose  life  he  had  feloniously  taken.  As  well  might  he  recover 
insurance  money  ui)on  a  building  that  he  had  willfully  fired." 
These  maxims,  vvithout  any  statute  giving  them  force  or  opera- 
tion, frequently  control  the  effect  and  nullify  the  language  of 
wills.  A  will  procured  by  fraud  and  deception,  like  any  other 
instrument,  may  be  decreed  void,  and  set  aside;  and  so  a  par- 
ticular portion  of  a  will  may  be  excluded  from  probate,  or  held 
inoperative,  if  induced  by  the  fraud  or  undue  influence  of  the 
person  in  whose  favor  it  is.  Allen  v.  McPherson,  1  H.  L.  Cas. 
191;  Harrison's  Appeal,  48  Conn.  202.  So  a  will  may  contain 
provisions  which  are  immoral,  irreligious,  or  against  public 
policy,  and  they  will  be  held  void. 

Here  there  was  no  certainty  that  this  murderer  would  survive 
the  testator,  or  that  the  testator  would  not  change  his  will, 
and  there  was  no  certainty  that  he  would  get  this  property  if 
nature  was  allowed  to  take  its  course.  He  therefore  murdered 
the  testator  expressly  to  vest  himself  with  an  estate.  Under  such 
circumstances,  what  law,  human  or  divine,  will  allow  him  to 
take  the  estate  and  enjoy  the  fruits  of  his  crime?  The  will 
spoke  and  became  o))erative  at  the  death  of  the  testator.  He 
caused  that  death,  and  thus  by  his  crime  made  it  speak  and  have 
operation.  Shall  it  8i)eak  and  operate  in  his  favor?  If  he  had 
met  the  testator  and  taken  his  property  by  force,  he  would  have 
had   no  title  to  it.     Shall    he   acquire  title  by  murdering  him? 


758  WILLS. 

If  ho  hatl^one  to  the  testator's  house,  and  by  force  compelled 
him,  or  by  fraud  or  undue  influence  had  induced  him,  to  will 
him  his  property,  the  law  would  Dot  allow  him  to  hold  it.  But 
can  he  give  eflect  and  o[)eiation  to  a  will  by  nuirdi-r,  and  yet 
take  the  pro{)erty  ?  To  answer  these  questions  in  the  affirmative 
it  seems  to  me  would  be  a  re[)roach  to  the  jurisdiction  of  our 
State,  and  an  offense  against  public  policy.  Under  the  civil  law, 
evolved  from  the  general  principles  of  natural  law  and  justice  by 
mjiny  generations  of  jurisconsults,  philosophers,  and  statesmen, 
one  cannot  take  property  by  inheritance  or  will  from  an  ancestor 
or  benefactor  whom  he  has  murdered.  Dom.  Civil  Law,  pt.  2, 
bk.  l,tit.  1,  §  3;  Code  Nap.,' §  727  ;  Mack.  Roin.  Law,  530,  550. 
In  the  Civil  Code  of  Lower  Canada  the  provisions  on  the  subject 
in  the  Code  Napoleon  have  been  substantially  copied.  But,  so 
far  as  I  C;in  find,  in  no  country  where  the  common  law  prevails 
has  it  been  deenied  important  to  enact  a  law  to  provide  for  such 
a  case.  Our  revisers  and  la\v-m:ikers  were  familiar  with  the 
civil  law,  and  they  did  not  deem  it  important  to  incoi  porate  into 
our  statutes  its  [)rovisions  upon  this  sul)ject.  This  is  not  a  casus 
077iissus.  It  was  evidently  supposed  that  the  maxims  of  the 
common  law  were  sufficient  to  regulate  such  a  case,  and  that  a 
specific  enactment  for  that  purpose  was  not  needed.  For  the 
same  reasons  the  defendant  Palmer  cannot  t.ike  any  of  this  prop- 
erty as  heir.  Just  i)efore  the  murder  he  was  not  an  heir,  and  it 
was  not  certain  that  he  ever  would  be.  He  might  have  died 
before  his  grandfather,  or  might  have  been  disinherited  by  him. 
He  made  himself  an  heir  by  the  murder,  and  he  seeks  to  take 
property  as  tlie  fruit  ()f  his  crime.  What  has  befoie  been  said 
as  to  him  as  legatee  ai)plies  to  him  with  equal  force  as  an  heir. 
He  cannot  vest  liimsL'lf  with  title  by  crime.  My  view  of  this  case 
does  not  inflict  upon  Elmer  any  greater  or  other  punishment  for 
his  crime  than  the  law  s{)ecifies.  It  t.ikes  from  him  no  property, 
but  simply  holds  that  he  shall  notacquire  property  by  his  crime, 
and  thus  be  rewarded  for  its  commission. 

Our  attention  is  called  to  Owens  v.  Owens,  100  N.  C.  240; 
6  S.  E.  Rep.  794,  as  a  case -quite  like  this.  There  a  wife  had 
been  convicted  of  being  an  acce^S0Iy  before  the  fact  to  the 
murder  of  her  husband,  and  it  was  held  that  she  was  nevei- 
theless  entitled  to  dower.  I  am  unwilling  to  assent  to  the  doc- 
trine  of  that  case.  The  statutes  provide  dower  for  a  wife  who 
has  the  misfortune  to  survive  her  husband,  and  thus  lose  his.^up- 
port  and  protection.  It  is  clear  beyond  their  purpose  to  make 
provision  for  a  wife  who  by  her  own  crime  makes  her.-elf  a 
widow,  and  willfully  and  intentionally  deprives  heiself  of  lh<' 
support  and  protection  of  her  husband.     As  she  might  have  died 


EFFECT    OF    MUIJDKIl    OF    A    TESTATOR    BY    A    DEVISEE.       759 
\ 

before  him,  and  thus  never  liave  been  his  widow,  she  cannot  by 
her  crime  vest  herself  witii  an  estate.  The  piinciple  which  lies 
at  the  bottom  of  the  maxim  volenli  non  Jit  injuria  should  be  ap- 
plied to  such  a  case,  and  a  widow  should  not,  for  the  purpose  of 
acquiring,  as  such,  property  rights,  be  permitted  to  allege  a 
widowhood  which  she  has  wickedly  and  intentionally  created. 

The  facts  found  entitled  the  plaintiffs  to  the  relief  they  seek. 
The  error  of  the  referee  was  in  his  conclusion  of  law.  Instead 
of  granting  a  new  trial,  therefore,  I  thiidi  the  proper  judgment 
upon  the  facts  found  should  be  ordered  heie.  The  facts  have 
been  parsed  upon  twice  with  the  same  result  —  tirst  upon  the 
trial  of  Palmer  for  murder,  and  then  by  the  referee  in  this  action. 
We  are  therefore  of  opinion  that  the  ends  of  justice  do  not  re- 
quire that  they  should  again  come  into  question.  The  judgment 
of  the  general  term  and  that  entered  u[)on  the  report  of  the 
referee  should  therefore  be  reversed,  and  judgment  should 
be  entered  as  follows:  That  Elmer  E.  Palmer  and  the  adminis- 
trator be  enjoined  from  using  any  of  the  personalty  or  real 
estate  left  by  the  testator  for  Elmer's  beneiiL  ;  that  the  devise 
and  bequest  in  the  will  to  Elmer  be  declared  ineffective  to  pass 
the  title  to  him;  that  by  reason  of  the  crime  of  murder  com- 
mitted u[)on  the  grandfather  he  is  dej)rived  of  any  interest  in 
the  estate  left  by  Inm  ;  that  the  plaintiffs  are  the  true  owners  of 
the  real  and  personal  estate  left  by  the  testator,  subject  to  the 
charge  in  favor  of  Elmer's  mother  and  the  widow  of  the  testator, 
under  the  antenuptial  agreement,  and  that  the  plaintiffs  have 
costs  in  all  the  courts  against  Elmer.  All  concur,  except 
Gray,  J.,  who  reads  dissenting  opinion,  and  Danforlh,  J., 
concurs. 

Gray,  J.  {dissenting).  This  appeal  presents  an  extraordi- 
nary state  of  facts,  and  the  case,  in  respect  to  them,  I  believe,  is 
without  precedent  in  this  State.  The  respondent,  a  lad  of  16 
years  of  age,  being  aware  of  the  provisions  in  his  grandfather's 
will,  which  constituted  him  the  residuary  legatee  of  the  testator's 
estate,  caused  his  death  by  poison,  in  1882.  For  this  crime  he 
was  tried,  and  was  convicted  of  murder  in  the  second  degree, 
and  at  the  time  of  the  commencement  of  this  action  lie  wa-< 
serving  out  his  sentence  in  the  State  reformatory.  The  aclioi; 
was  brought  by  two  of  the  children  of  the  testator  for  the  f)ur 
pose  of  having  those  provi.^ions  of  the  will  in  the  respondent's 
favor  canceled  and  annulled.  The  a[)pellants  argument  for 
a  reversal  of  the  judgment,  which  dismissed  their  com- 
plaint, is  that  the  respondent  unlawfully  prevented  a 
revocation  of  the  existing  will,  or  a  new  will  from  being 
made,  by  his  crime  ;    and    that   he    terminated    the   eujoymeni 


760  WILLS. 

by  the  testator  of  his  ))ioperty,  and  effected  his  own  succession 
to  it,  hy  the  stinie  ciinie.  They  say  that  to  permit  the  responcl- 
ent  to  lake  the  property  willed  to  him  wouhl  be  to  permit  him  to 
take  a(lvaMla<;e  of  his  own  wrong.  To  sustain  their  position  the 
appeUants'  counsel  has  sul)mitted  an  al)lo  and  elatiorate  brief, 
and  if  I  behcveci  that  the  decision  of  the  question  couhi  be 
effected  by  considerations  of  an  equitable  nature,  I  should  not 
hesitate  to  assent  to  views  which  commend  themselves  to  the  con- 
science. But  the  matter  does  not  lie  within  the  domain  of  con- 
science. VV' e  are  bound  l)y  the  rigid  rules  of  law,  which  have 
been  established  by  the  legislature,  and  within  thelimitsof  which 
the  determination  of  this  question  is  confined.  The  question  we 
are  dealing  with  is  whether  a  testamentary  disposition  can  be 
altered,  or  a  will  revoked,  after  the  testator's  death,  through  an 
appeal  to  the  courts,  when  the  legislatuie  has  by  its  enactments 
prescribed  exactly  when  and  how  the  wills  may  bo  made,  altered, 
and  revoked,  and  apparently,  as  it  seems  to  me,  when  they  have 
been  fully  complied  with,  has  left  no  room  for  the  exercise  of  an 
equitable  jurisdiction  by  courts  over  such  matters.  Modern 
juiisprudence,  in  recognizing  the  right  of  the  individual,  under 
more  or  less  restrictions,  to  dispose  of  his  property  after  his 
death,  sul)jects  it  to  legislative  control,  both  as  to  extent  and 
as  to  mode  of  exercise.  Complete  fieedom  of  testamentar}' 
dis[)Osition  of  one's  property  has  not  been  and  is  not  the 
universal  rule,  as  we  see  from  the  provisions  of  the  Napo- 
leonic Code,  from  the  systems  of  jurisprudence  in  countries 
which  are  modeled  upon  the  Roman  law,  and  from  the  stat- 
utes of  many  of  onr  States.  To  the  statutory  restraints 
which  are  imposed  upon  the  disposition  of  one's  property  by 
will  are  added  strict  and  systematic  statutory  rules  for  the  exe- 
cution, alteration,  and  revocation  of  the  will,  which  must  be,  at 
least  substantially,  if  not  exactly  followed  to  insure  validity 
and  performance.  The  reason  for  the  establishment  of  such 
rules,  we  may  naturally  assume,  consists  in  the  purpose  to  create 
those  safeguards  about  these  grave  and  im[)ortant  acts  which  ex- 
perience has  demonstrated  to  be  the  wisest  and  surest.  That 
freedom  which  is  permitted  to  be  exercised  in  the  testamentary 
disposition  of  one's  estate  by  the  laws  of  the  State  is  subject  to 
its  being  exercised  in  conformity  with  the  regulations  of  the 
statutes.  The  capacity  and  power  of  the  individual  to  dispose  of 
his  property  after  death,  and  the  mode  by  which  that  power  can 
be  exercised,  are  matters  of  which  the  legislature  has  assumed 
the  entire  control,  and  has  undertaken  to  regulate  with  compre- 
hensive particularity. 

The  appellant's  argument  is  not  helped  by  reference  to  those 


EFFECT    OF    MURDER    OF    A    TESTATOR    BY    A    DEVISEE.  761 

rules  of  the  civil  law,  or  to  those  laws  of  other  governments,  by 
vvliich  the  heir,  or  le<;;itee,  is  excluded  from  benefit  under  the 
testament  if  he  has  been  convicted  of  killing,  or  attempting  to 
kill,  the  testator.  In  the  absence  of  such  legislation  here,  the 
courts  are  not  empowered  to  institute  such  a  system  of  remedial 
justice.  The  deprivation  of  the  heir  of  his  testamentary  succes- 
sion by  the  Roman  law,  when  guilty  of  such  a  crime,  plainly  was 
intended  to  be  in  the  nature  of  a  punishment  imposed  upon  him. 
The  succession,  in  such  a  cas-e  of  guilt,  escheated  to  the  excheq- 
uer. See  Dom.  Civil  Law,  pt.  2,  bk.  1,  tit.  1,  §  3.  I  concede 
that  rules  of  law  which  annul  testamentary  provisions  made  for 
the  benefit  of  those  who  have  become  unworthy  of  them  may  be 
based  on  principles  of  equity  and  of  natural  justice.  It  is  quite 
reasonable  to  suppose  that  a  testator  would  revoke  or  alter  his 
will,  where  his  mind  has  been  so  angered  and  changed  as  to  make 
him  unwilling  to  have  his  will  executed  as  it  stood.  But  these 
principles  only  suggest  sufficient  reasons  for  the  enactment  of 
laws  to  meet  such  cases. 

The  statutes  of  this  State  have  prescribed  various  ways  in 
which  a  will  may  be  altered  or  revoked ;  but  the  very  provision 
defining  the  modes  of  alteration  and  revocation  implies  a  pro- 
hibition of  alteration  or  revocation  in  any  other  way.  The 
words  of  the  section  of  the  statute  are:  "No  will  in  writing, 
except  in  the  cases  hereinafter  mentioned,  nor  any  part  thereof, 
shall  be  revoked  or  altered  otherwise,"  etc.  Where,  thei'efore, 
none  of  the  cases  mentioned  are  met  by  the  facts,  and  the 
revocation  is  not  in  the  way  described  in  the  section,  the  will  of 
the  testator  is  unalterable.  I  think  that  a  valid  will  must  continue 
as  a  will  always,  unless  revoked  in  the  manner  provided  by  the 
statutes.  Mere  intention  to  revoke  a  will  does  not  have  the  effect 
of  revocation.  The  intention  to  revoke  is  necessary  to  consti- 
tute the  effective  revocation  of  a  will ,  but  it  must  be  demonstrated 
by  one  of  the  acts  contemplated  by  the  statute.  As  Woodworth, 
J.,  said  in  Dan  v.  Brown,  4  Cow.  490  ;  "  Revocation  is  an  act 
of  the  mind,  which  must  be  demonstrated  by  some  outward  and 
visible  sign  of  revocation."  The  same  learned  judge  said  in 
that  case :  ♦'  The  rule  is  that  if  the  testator  lets  the  will  stand 
until  he  dies,  it  is  his  will ;  if  he  does  not  suffer  it  to  do  so,  it  is 
not  his  will."  And  see  Goodright  v.  Glazier,  4  Burrows,  2512, 
2514;  Pemberton  v.  Pemberton,  13  Ves.  290.  The  finding  of 
fact  of  the  referee  that  presumably  the  testator  would  have 
altered  his  will  had  he  known  of  his  grandson's  murderous 
intent  cannot  affect  the  question.  We  may  concede  it  to  the 
fullest  extent,  but  still  the  cardinal  objection  is  undisposed  of, — 
that  the  making  and  the  revocation  of  a  will  are  purely  matters 


762  WILLS. 

of    statutory    rogulution,  by    wliich  Iho  court  is  bound  in  the 
detcrminatiou  of  questions  relating  to  these  acts. 

Two  cases,  —  in  this  State  and  in  Kentucky,  —  at  an  early  day, 
seem  to  me  to  be  much  in  point.  Gains  v.  Gains,  2  A.  K. 
Marsh.  190,  was  decided  by  the  Kent  ucky  court  of  appeals  in  1820. 
It  was  there  urged  that  the  testator  intended  to  have  destroyed 
his  will,  and  that  he  was  forcibly  prevented  from  doing  so  by 
the  defendant  in  error  or  devisee  ;  and  it  was  insisted  that  tlie 
will,  though  not  expressly,  was  thereby  virtually  revoked.  The 
court  held,  as  the  act  concerning  wills  prescribed  the  manner  in 
which  a  will  might  be  revoked,  that,  as  none  of  the  acts  evidenc- 
ing revocation  were  done,  the  intention  could  not  be  substituted 
for  the  act.  In  that  case  the  will  was  snatched  away,  and  forci- 
bly retained.  In  1854,  Surrogate  Bradford,  whose  opinions  are 
entitled  to  the  highest  consideration,  decided  the  case  of  Leay- 
craft  V.  Simmons,  3  Bradf.  Sur.  35.  In  that  case  the  testator,  a 
man  of  eighty-nine  years  of  age,  desired  to  make  a  codicil  to  his 
will,  in  order  to  enlarge  the  provisions  for  his  daughter.  His 
son,  having  the  custody  of  the  instrument,  and  the  one  to  be 
prejudiced  by  the  change,  refused  to  produce  the  will  at  testator's 
request,  for  the  purpose  of  alteration.  The  learned  surrogate 
refers  to  the  provisions  of  the  civil  law  for  such  and  other  cases 
of  unworthy  conduct  in  the  heir  or  legatee,  and  says:  "  Our 
statute  has  undertaken  to  prescribe  the  mode  in  which  wills  can 
be  revoked  [citing  the  statutory  provision].  This  is  the  law  by 
which  I  am  governed  in  passing  upon  questions  touching  the  re- 
vocation of  wills.  The  whole  of  this  subject  is  now  regulated  by 
statute;  and  a  mere  intention  to  revoke,  however  well  authenti- 
cated, or  however  deCeated,  is  not  sufficient."  And  he  held  that 
the  will  must  be  admitted  to  probate.  I  may  refer  also  to  a  case  in 
the  Pennsylvania  courts.  In  that  State  the  statute  prescribed  the 
mode  for  repealing  or  altering  a  will,  and  in  Clingan  v.  Michel- 
tree,  31  Pa.  St.  25,  the  Supreme  Court  of  the  State  hekl,  where 
a  will  was  ke[)t  from  destruction  by  the  i'rau<l  and  misrepresenta- 
tion of  the  devisee,  that  to  declare  it  canceled  as  against  the 
fraudulent  party  would  be  to  enlarge  the  statute. 

I  cannot  find  any  support  for  the  argument  that  the  respond- 
ent's succession  to  the  property  should  be  avoided  because  of  his 
criminal  act,  when  the  laws  are  silent.  Public  policv  does  not 
demand  it;  for  the  demands  of  public  policy  are  satisfied  by  the 
proper  execution  of  the  laws  and  the  punishment  of  the  crime. 
There  has  been  no  convention  between  the  testator  and  his  lega- 
tee; nor  is  there  any  such  contractu.d  element,  in  such  a  disposi- 
tion of  property  by  a  testator,  as  to  impose  or  imply  conditions 
in  the  legatee.     The  appellant's  argument  practically  amounts  to 


REVOCATION    BY    SUBSEQUENT    WILL    Oli    CODICIL.  7G3 

this  :  that,  as  the  legatee  has  been  guilty  of  a  crime,  by  the  com- 
mission of  which  he  is  placed  in  a  position  to  sooner  receive  the 
benefits  of  the  testamentary  provision,  his  rights  to  the  prop- 
erty should  be  forfeited,  and  ho  should  be  divested  of  his  estate. 
To  allow  their  argument  to  j)revail  would  involve  tiic  diversion 
by  the  court  of  the  testator's  estate  into  the  hands  of  })ersons 
whom,  possibly  enough,  for  all  we  know,  the  testator  might  not 
have  chosen  or  desired  as  its  recipients.  Practically  the  court 
is  asked  to  make  another  will  for  the  testator.  The  laws  do 
not  warrant  this  judicial  action,  and  mere  presumption  would 
not  be  strong  enough  to  sustain  it.  But  more  than  this,  to  con- 
cede the  a[)pelhuits'  views  would  involve  the  imposition  of 
an  additional  punishment  or  penalty  upon  the  respondent. 
What  power  or  warrant  have  the  courts  to  add  to  the  respond- 
ent's penalties  by  depriving  him  of  property?  The  law  has 
punished  him  for  his  crime,  and  we  may  not  say  that  it  was  an 
insufBeient  punishment.  In  the  trial  and  punishment  of  the 
respondent  the  law  has  vindicated  itself  for  the  outrage  which 
he  committed,  and  iurther  judicial  utterance  upon  the  subject 
of  punishment  or  depiivation  of  rights  is  barred.  We  may  not, 
iu  the  language  of  the  court  in  People  v.  Thornton,  25  Hun, 
456,  "  enhance  the  pains,  {ienaltics,  and  forfeitures  provided  by 
law  for  the  punishment  of  crime."  The  judgment  should  be 
affirmed,  with  costs. 
Danforth,  J.,  concurs. 


Revocation  by  Subsequent  Will  or  Codicil. 

Newcomb  v.  Webster,  113  N.  Y.  191;  21  N.  E.  77. 

Opinion  by  Danforth,  J. 

Appeal  from  a  judgment  of  the  general  term,  fifth  depart- 
ment, of  the  Supreme  Court,  affirming  a  judgment  of  Monroe 
County  special  term,  upon  trial  by  the  court  without  a  jury. 
There  was  no  dispute  about  the  facts.  It  appeared  that  Angeline 
B.  Walker  died  on  the  7th  of  June,  1884,  leaving  real  and  })er- 
sonal  property  in  Monroe  County;  that  by  her  will,  dated  April 
23,  1881,  she  by  its^^/'s^  clause,  gave  to  her  sister  Olive,  for  life, 
house  No.  89  Frank  street;  remainder  to  Mrs.  A.  B.Johnson, 
Mary  A.  Hatch,  and  Milicent  J.  Johnson.  By  the  secoucZ  clause, 
to  Anna  Newcomb  for  life,  house  and  lot  No.  14  Spencer  street; 
remainder  to  the  surviving  children  of  Anna.  Third.  She 
directed  house  No.  89^  Frank  street  to  be  sold,  and  its  proceeds 
applied  in  part  to  the  erection  of  a  monument  on  "  my  lot  in 


764  WILLS. 

Mt.  Hope;  "  $100  to  the  Mt.  Hope  commissioners,  to  keep  the 
same  and  lot  in  order;  and  the  residue  to  Enieline  Soper,  William 
Sprino;stcad,  Huber  Hcrrick,  Nelly  Soi)or,  Francis  Speucely, 
and  Elliot  Hodges,  of  Kochester,  N.  Y.,  share  and  share  alike, 
after  tirst  paying  $100  each  to  Mis.  lloso  Chrichton,  of  Koch- 
ester, N.  Y.,  and  to  Charles  P.  Hodges,  of  Cleveland,  Ohio,  which 
*'  Ihcqucathto  them."  The  legacy  of  William  Springstead  to  be 
deposited  in  the  Monroe  County  Savings  Bank,  and  paid  over, 
with  its  accumulations,  when  he  arrives  at  21  years  of  age. 
Fourth.  Directs  No.  102  Jones  street  to  be  sold,  and  proceeds 
to  be  divided  between  the  six  children  of  George  Walker.  Fifth. 
She  gives  her  piano  to  Robert  P.  Newcomb,  son  of  Anna  L. 
Newcomb  ;  and  all  her  household  furniture  and  household  goods 
and  effects  to  her  nieces,  Mrs.  Adelia  Johnson,  Mary  Hatch, 
Anna  Newcomb,  Ida  Springstead,  of  Rochester,  and  Minerva 
Herrick,  of  W^atertown,  N.  Y.;  and  also  all  residuary  interests 
and  estate;  and  finally  appoints  Aaron  N.  Newcomb  and  Edward 
Webster  executors  of  the  will,  with  power  to  sell  and  convey 
real  estate.  It  further  appeared  that  in  the  year  1882  she  sold 
lot  14,  referred  to  in  the  second  clause  of  the  will,  and  also  sold 
102  Jones  street,  referred  to  in  the  fourth  clause.  Afterwards, 
in  1884,  she  executed  an  instrument  in  these  words:  '*  I,  Ange- 
lina B.  Walker,  of  the  city  of  Rochester,  county  of  Monroe,  and 
State  of  New  York,  do  make,  publish,  and  declare  this  first 
codicil  to  my  last  will  and  testament,  hereby  revoking  so  much 
of  my  said  last  will  and  testament  as  is  consistent  with  the  pro- 
visions of  this  codicil :  Item  First.  I  direct  one  hundred  dollars 
to  be  set  aside  and  paid  over  to  the  commissioners  of  Mount 
Hope  as  a  perpetual  fund,  the  interci^t  of  which  shall  be  annually 
expended  to  keep  the  lot  in  said  Mount  Hope  belonging  to  my 
late  husband,  Robert  Walker,  and  my  brother.  Perry  Hodges. 
Second.  I  give  and  bequeath  to  the  Rochester  Home  for  the 
Friendless  one  hundred  and  fifty  dollars.  Third.  I  give  and  be- 
queath to  the  Frank  Street  (otherwise  Sixth)  Methodist  Episco- 
pal Church  of  Rochester,  to  be  expended  by  the  trustees  thereof 
towards  erecting  a  parsonage  for  the  use  of  their  pastor,  the 
sum  of  five  hundred  (500)  dollars.  Fourth.  I  give  and  bequeath 
to  the  Rochester  Orphan  Asylum  three  hundred  dollars,  to  be 
expended  for  the  rearing  and  education  of  an  orphan.  Belle  Peer 
by  name.  Fifth.  I  give  and  bequeath  to  Hubert  Herrick  of 
Rochester,  five  hundred  dollars,  to  be  placed  on  interest  in  the 
Monroe  County  Savings  Bank,  paid  over  to  him  on  arriving  at 
twenty-one  years  of  age.  If  he  shall  die  before  that  date,  then 
said  legacy  shall  go  to  his  mother,  Minerva  Herrick.  Sixth.  I 
give  and  bequeath  to  my  sisters,  Emiline   Soper  and  Olive  J. 


REVOCATION    BY    SUBSEQUENT    WILL    OR   CODICIL.  765 

Hiitcli,  oMoh  the  siiin  of  live  hiin<lr(Ml  (500 )  dollnrs.  Seventh . 
I  Lnvo  .•nui  iK^quoath  tothcMX  ((i)  cliildrrii  of  my  brolher-in-law, 
G«  oiL^e  Walker,  each  the  sum  of  two  hundred  (200)  dolhirs. 
Eiglith.  I  jrive  and  bequeath  to  my  four  nieces,  Mrs.  Anna  New- 
C(»nil),  Frances  Spencely  (of  Cmada),  Adelia  B.  Johnson,  and 
Mary  N.  Hatch,  all  the  re>t,  residue  and  remainder  of  my  estate 
both  real  and  personal,  to  be  divided  equally  between  them,  and 
share  and  share  alike."  The  trial  judge  found  "thatiiopait 
of  said  will  is  revoked  by  said  codicil,  except  the  second  and 
fourth  clauses  thereof,  and  the  residuary  devise  in  the  filth  clause 
of  said  will,  but  that  all  other  legacies  and  devises  in  said  will 
and  codicil  oujrht  to  be  carried  into  efTeet." 

Both  will  and  codicil  were  admitted  to  probate  by  the  surro- 
gate of  Monroe  County,  and  administration  granted  to  the  persons 
named  in  the  will  as  executors,  and,  some  difference  h  iving  arisen 
as  to  the  effect  of  the  codicil,  this  action  was  brought  by  Execu- 
tor Newcomb  and  others,  again-t  Executor  Webster  and  others, 
for  the  purpose  of  obtaining  a  judicial  construction  of  its  pro- 
visions. The  plaintiffs  contend  that  the  codicil  revokes  all  the 
provisions  of  the  will,  except  those  relating  to  the  appointment 
of  executors,  while  the  defendants  sup[)Ose  that  both  instruments 
can  stand,  and  the  legacies  and  devises  in  each  take  eH'ect.  The 
court  at  special  and  general  terms  have  substanti:d!y  sustained 
the  view  of  the  defendants,  and  from  that  decision  the  plaintiffs 
ajipeal.  It  may  be  taken  as  a  well-settled  general  rule  that  a 
will  and  codicil  are  to  be  construed  together,  as  parts  of  one  and 
the  same  instrument,  and  that  a  codicil  is  no  revocation  of  a 
will,  further  than  it  is  so  expressed.  Westcott  v.  Cady,  5  Johns. 
Ch.  343.  But,  if  regarded  as  one  instrument,  it  is  found  to 
contain  rei)ugnant  bequests  in  separate  clauses,  one  or  the  other, 
or  both,  must  fail ;  and  therefore  the  lule  is  that  of  the  two  the 
bequest  contained  in  the  latter  clause  shall  stand.  The  same 
principle  applies  with  greater  force  where  there  are  two  dis- 
tinct instruments  relating  to  the  same  subject-matter.  In  such 
a  case  an  inconsistent  devise  or  bequest  in  the  second  or  last  in- 
strument is  a  complete  revocation  of  the  former.  But  if  part  it^ 
inconsistent  and  part  is  consistent,  the  first  will  is  deemed  to  be 
revoked  only  to  the  extent  of  the  discordant  dispositions,  and 
so  far  as  may  be  necessary  to  give  effect  to  the  one  last  made. 
Nelson  V.  McGiffert,  3  Barl).  Ch.  158.  In  the  case  under  con- 
sideration it  appears  that  the  testatrix,  in  her  life-time,  and  after 
the  making  of  the  will,  so  dealt  with  the  p  incipal  real  estate  de- 
scribed in  it  as  by  sale  to  revoke  the  gilts  mentioned  in  the 
second  and  fourth  clauses.  She  also  acquired  other  real  estate, 
and   entertained  a  desire  that  beneficiaries  other  than  those  first 


! 


7G6  WILLS. 

selected,  should  share  in  her  bounty.  The.se  circumstances  would 
naturally  require  a  redistribution  or  her  estate,  and  in  view  of 
them  we  think  it  clonr  that  the  testatrix  intended  to  make  a  now 
disposition  of  her  entire  pioperty.  Such  is  at  any  rate  the  effect 
of  the  language  einj)loyed  by  her.  There  is,  moreover,  an 
express  revocation  of  so  much  of  the  will  as  is  inconsistent  with 
the  provisions  of  the  codicil.  If  we  apply  this  language 
literally,  it  is  obvious  that  the  entire  will  is  to  be  dis- 
regarded, except  so  much  as  appoints  executors  and  de- 
fines their  powers.  The  codicil  does  not  deal  with  that 
subject,  and  to  that  extent  the  testatrix  was  justified  in 
regarding  the  will  as  a  subsisting  instrument.  The  codicil 
does,  however,  make  a  complete  dis[)osition  of  all  the  property 
of  the  decedent,  either  by  s|)ecial  legacy  or  residuary  clause. 
It  is  capable  of  operation  without  aid  from  the  will,  and  in  fact 
is  entirely  independent  of  it.  The  property,  divided  according 
to  its  terms,  would  leave  nothing  to  apply  upon  the  legacies  or 
bequests  of  the  will.  The  codicil,  nioreovei-,  introduces  new 
beneficiaries,  and,  while  it  provides  also  for  persons  already 
named  in  the  will,  does  so,  not  by  refeiring  to  the  will,  or  by 
way  of  increase  or  addition  to  shares  given  by  it,  but  evidently 
by  substitution ;  and  then  by  formal  and  explicit  language  the 
testatrix  gives  to  her  four  nieces  all  the  rest  and  remainder  of 
her  estate,  both  real  and  personal,  to  be  divided  equally  among 
them.  The  remainder  here  s[)oken  of  is  that  which  is  left  after 
satisfying  the  legacies  provided  for  in  the  same  instrument,  and 
it  is  impossible  for  the  disposition  made  by  the  will  to  stand  with 
that  made  by  the  codicil.  Both  instruments  were,  however, 
properly  admitted  to  probate,  for  the  appointment  of  executors 
by  the  will  holds  good,  although  the  e-tate  is  to  be  administered 
according  to  the  provisions  of  the  codicil.  The  i)laintilfs  are, 
we  think,  entitled  to  a  decree  to  that  effect,  and,  so  far  as  the 
judgment  ai)pealed  from  is  to  the  contrary,  it  should  be  revei-sod, 
with  costs  to  the  appellant.  But  as  the  defendants  have  hereto- 
fore succeeded,  th<  y  also  should  have  one  bill  of  costs,  both  to 
be  paid  out  of  the  estate.     All  concur. 


Effect  of  Revocation  of  a  Later  Will  on  an  Earlier  Will 

not  Canceled. 

Picliens  v.  Davis,  134  Mass.  252. 

Appeal  from  decree  of  probate  court,  admitting  will  of  Mary 
Davis. 

C.  Allen,   J.     The    two    questions    in    this    case    are,    first, 


LATER  WILL  REVOKED — EARLIER  WILL  NOT  CANCELED.  707 

whether  llie  ci'.ncellation  of  a  will,  which  was  duly  executed,  and 
wliicli  contained  a  clause  expressly  revoking  former  wills,  has 
the  effect,  as  a  matter  of  law,  to  revive  a  former  will  which  has 
not  been  destroyed,  or  whether  in  each  instance  it  is  to  be 
regarded  as  a  question  of  intention,  to  be  collected  from  all  the 
cinumstanccs  of  the  case;  and  secondly,  if  it  is  to  be  regarded 
as  a  que>tion  of  intention,  whether  subsequent  oral  declarations 
of  the  testator  are  admissible  in  evidence  for  the  purpose  of 
.-howing  what  his  intention  was.  These  are  open  questions  in 
this  commonwealth.  In  Reid  v.  Borland,  14  Mass.  208,  the 
second  will  was  invalid,  for  want  of  due  attestation.  In 
Liiughton  V.  Atkins,  1  Pick  535,  the  second  will  was  adjudged 
to  1)6  null  and  void,  as  having  been  procured  through  undue 
influence  and  fraud;  and  tiie  whole  decision  went  upon  the 
ground  that  it  was  never  valid,  and  could  not  be. 

The  first  of  tbes^e  questions  has  been  much  discussed,  both  in 
England  and  America ;  and  it  has  been  often  said  that  the  courts 
of  common  law  and  the  ecclesiastical  courts  in  England  are  at 
variance  upon  it.  See  1  Wms.  on  Executors  (5th  Am.  ed.), 
154-156,  where  the  authorities  are  cited.  The  doctrine  of  the 
ecclesiastical  courts  was  thus  stated  in  1824,  in  Usticke  v.  Baw- 
den,  2  Add.  Ecc.  116,  125:  "  The  legal  presumption  is  neither 
adverse  to,  nor  in  favor  of,  the  revival  of  a  former  uncan- 
celed, upon  the  cancellation  of  a  later,  revocatory  will.  Hav- 
ing furnished  this  principle,  the  law  withdraws  altogether  ;  and 
leaves  the  question,  as  one  of  intention  })urely,  and  open  to  a 
decision,  either  way,  solely  according  to  facts  and  circumstan- 
ces." See  also  Moore  v.  Moore,  1  Phillim.  406;  Wilson  v. 
Wilson,  3  Phillitn.  543,554;  Hooton  v.  Head,  3  Phillim.  26; 
Kirkcudbright  v.  Kirkcudbright,  1  Hairg.  Ecc.  325;  Welch  v. 
Phillips,  1  Moore  P.  C.  299.  In  Powell  on  Dev.  (ed.  of  1827) 
527,  528,  a  distinction  is  taken  between  the  efllect  of  the  can- 
cellation of  a  second  will  which  contains  no  express  clause 
revoking  former  wills,  and  of  a  will  which  contains  such  a  clause; 
and  in  respect  to  the  latter  it  is  said  that,  "if  a  prior  will  be 
made,  and  then  a  sul>sequent  one  expressly  revoking  the  former, 
in  such  case,  although  the  first  will  be  left  entire,  and  the  second 
will  afterwards  canceled,  yet  the  better  opinion  seems  to  be 
that  the  former  is  not  thereby  set  up  again."  Jarman's  note 
que.-tioiis  the  soundness  of  the  above  doctrine  (p.  529,  ?*,). 
While  this  apparent  discrepancy  in  the  respective  C(surts 
remained  not  fidly  reconciled,  in  1837,  the  English  Statute  of 
Wills  was  passed,  St.  7  Will.  IV.  &  1  Vict.,  c.  36,  sec.  22  of 
which  provided  that  "  no  will  or  codicil,  or  any  part  thereof, 
which   shall   be   in  any  manner  revoked,  shall   be  revived  other 


768  WILL8. 

than  y  the  re-execution  (hereof,  or  hy  a  codicil  executed  in 
manner  hereinl)ef()re  required,  and  showing  an  intentitui  to 
revive  the  same."  Since  the  enactment  of  this  statute,  the  de- 
cisions in  all  the  courts  have  been  uniform,  that  after  the 
execution  of  a  subsequent  will  which  contained  an  express  revo- 
cation, or  which  by  reason  of  inconsistent  provisions  amounted 
to  an  implied  revocation  of  a  former  will,  such  former  will 
would  not  be  revived  by  the  cancellation  or  destruction  of  the 
later  one.  Major  v.  Williams,  3  Curt.  Ecc.  432;  James  v. 
Cohen,  3  Curt.  Ecc.  770,  782;  Brown  v.  Brown,  8  El.  &  Bl. 
876;  Dickinson  v.  Swatman,  30  L.  J.  (n.  s.  )  P.  &  M.  84; 
Wood  V.  Wood,  L.  K.  1  P.  &  D.  309.  In  order  to  have  the 
effect  of  revocation,  it  must  of  course  be  made  to  a))pear  that 
the  later  will  contained  a  revocatory  clause,  or  provisions  which 
were  inconsistent  with  the  former  will  ;  and  the  mere  fact  of  the 
execution  of  a  subsequent  will,  without  evidence  of  its  contents, 
has  been  considered  insufficient  to  amount  to  a  revocation. 
Cutto  V.  Gilbert,  9  Moore  P.  C.  131.  See  also  Nelson  v.  Mc- 
Gifeert,  3  Barb.  Ch.  158. 

In  the  United  States,  there  is  a  like  discrepancy  in  the  decis- 
ions in  different  State-;,  though  the  clear  preponderance  a|)pear8 
to  be  in  favor  of  a  doctrine  substantially  like  that  established 
in  the  ecclesiastical  courts.  This  rule  was  established  in  Con- 
necticut, in  1821,  in  James  v.  Marvin,  3  Conn.  576,  where  it 
was  held  that  the  revocatory  clause  in  the  second  will,  pi'o- 
prio  vigore,  operate  instantaneously  to  effect  a  revocation, 
and  that  the  destruction  of  the  second  will  did  not  set  up  the 
former  one;  and  the  like  rule  was  declared  to  exist  in  New 
York,  by  the  Supreme  Court  of  that  State,  in  1857,  in  Simmons 
V.  Simmons,  26  Barb.  6S.  The  question  was  greatly  considered 
in  Maryland,  m  1863,  in  Colvin  v.  Warford,  20  Md.  357,  391, 
and  the  court  declared  that  "a  clause  in  a  subsequent  will, 
which  in  terms  revokes  a  [)revious  will,  is  not  only  an  expression 
of  the  purpose  to  revoke  the  previous  will,  but  an  actual  con- 
summation of  it,  and  the  revocation  is  compUle  and  conclusive, 
without  regard  to  the  testamentary  provisions  of  the  will  con- 
taininij  it."  The  court  further  held  that  the  cancellation  of  a 
levoking  \v\\\,  prima  facie,  is  evidence  of  an  intention  to  revive 
the  previous  will,  but  the  presumi)tion  may  be  rebutted  by  evi 
dence  of  the  attending  circumstances  and  probilde  motives  of 
the  testator.  In  Harwell  v.  Lively,  30  Ga.  315,  in  1860,  a 
similar  rule  was  l.iid  down,  and  maintained  with  great  force  of 
reasoning.  The  opinion  of  the  court  concludes  wiih  the  follow- 
ing pertinent  suggestion  :  "  It  must  be  conceded  there  is  much 
Uw   adverse   to  the   doctrine.      *     *     *     Calculated   as  it  is  to 


LATER   WILL    REVOKED EARLlEIt    WILL    NOT    CANCELED.       769 

subserve  and  enforce  the  tenor  and  spirit  of  our  own  legishition, 
and  to  give  to  our  people  tho  full  benefit  of  the  two  hundred 
years'  experience  of  the  mother  country,  as  embodied  in  the  late 
act,  is  it  not  the  dictate  of  wisdom  to  begin  in  this  State  where 
they  have  ended  in  England?  We  think  so."  Sec  also  Bark- 
dale  V.  Hopkins,  23  Ga.  332.  The  courts  of  Mississippi  in 
183G,  and  of  Michigan,  in  1881,  adopted  the  same  rule.  Bo- 
hanan  v.  Walcot,  1  How.  (Miss.)  336  ;  Scott  v.  Fink,  45  Mich. 
241.  It  is  to  be  observed,  that  some  of  the  foregoing  decisions 
are  put  expressly  on  the  ground  that  the  later  will  contained  an 
express  clause  of  revocation.  45  Mich.  246;  20  Md.  392.  An 
examination  of  the  cases  decided  in  Pennsylvania  leads  us  to 
infer  that  a  similar  rule  would  probably  have  been  adopted  in 
that  State,  if  the  question  had  been  directly  presented.  Lawson 
V.  Morrison,  2  Dall.  286,  290;  Boudinot  v.  Bradford,  2  Yeates, 
170;  s.  c.  2  Dall.  266;  Flintham  v.  Bradford,  10  Penn.  St.  82, 
85,  92. 

On  the  other  hand,  in  Taylor  v.  Taylor,  2  Nott  &  McC.  482, 
in  1820,  it  was  held  in  South  Carolina  that  the  earlier  will  re- 
vives upon  the  cancellation  of  the  later  one  ;  and  the  same  rule 
prevails  in  New  Jersey,  as  is  shown  by  Randall  v.  Beatty,  4 
Stew.  (N.  J.)  643,  and  cases  there  cited. 

In  various  States  of  the  Union,  statutes  have  been  enacted  sub- 
stantially to  the  same  effect  as  the  English  statute  above  cited, 
showing  that  wherever,  so  far  as  our  observation  has  extended, 
the  subject  has  been  dealt  with  by  legislation,  it  has  been  thought 
wiser  and  better  to  provide  that  an  earlier  will  shall  not  be  re- 
vived by  the  cancellation  of  a  later  one.  There  are,  or  have  been, 
such  statutes  in  New  York,  Ohio,  Indiana,  Missouri,  Kentucky, 
California,  Arkansas,  and  Virginia,  and  probably  in  other  States. 
Concerning  these  statutes  of  New  York,  it  is  said  in  4  Kent  Cora. 
532,  that  they  *'  have  essentially  changed  the  law  on  the  subject 
of  these  constructive  revocations,  and  rescued  it  from  the  hard 
operation  of  those  technical  rules  of  which  we  have  complained, 
and  placed  it  on  juster  and  more  rational  grounds." 

On  the  whole,  the  question  being  an  open  one  in  this  State,  a 
majority  of  the  court  has  come  to  theconclusion  that  the  destruc- 
tion of  the  second  will  in  the  present  case  would  not  have  the 
effect  to  revive  the  first  in  the  absence  of  evidence  to  show  that 
such  was  the  intention  of  the  testator.  The  clause  of  revocation 
is  not  necessarily  testamentary  in  its  character.  It  might  as  well 
be  executed  as  a  separate  instrument.  The  fact  that  it  is  inserted 
in  a  will  does  not  necessarily  show  that  the  testator  intended  that 
it  should  be  dependent  on  the  continuance  in  force  of  all  the  other 
provisions  by  which  his  property  is  disposed  of.   It  is  more  reason- 

49 


770  WILLS. 

.'ible  and  natuijil  to  assume  th.it  such  revocatory  clause  hHows 
emphatically  and  conclusively  that  he  has  abandoned  his  former 
intentions,  and  substituted  therefor  a  new  disposition  of  his  prop- 
erty, which  for  the  i)resent,  and  unless  again  modified,  shall 
stand  as  representing  his  wishes  upon  the  subject.  But  when 
the  new  plan  is  in  its  turn  abandoned,  anci  such  abandonment  is 
shown  by  a  cancellation  of  the  later  will,  it  by  no  means  follows 
that  his  mind  reverts  to  the  original  scheme.  In  point  of  fact, 
we  believe  that  this  would  comparatively  seldom  be  found  to  be 
true.  It  is  only  l>y  an  artificial  presumption,  created  oriirinally 
for  the  purpose  of  preventing  intestacy,  that  such  a  rule  of  law 
has  ever  been  held.  It  does  not  correctly  rei)resent  the  actual 
operation  of  the  minds  of  testators,  in  the  majority  of  in- 
stances. The  wisdom  which  has  come  from  exi)erience,  in 
England  and  in  this  country,  seems  to  point  the  other  way.  In 
the  absence  of  any  statutory  provision  to  the  contrary,  we  are 
inclined  to  the  opinion  that  such  intention,  if  proved  to  have 
existed  at  the  time  of  cant;eling  the  second  will,  would  give  to 
the  act  of  such  cancellation  the  effect  of  reviving  the  former 
will ;  and  that  it  would  be  open  to  prove  such  intention  by  parol 
evidence.  Under  the  statute  of  England,  and  of  Virginia,  and 
perhaps  of  other  States,  such  revival  cannot  be  proved  in  this 
manner.  Major  v.  Williams,  and  Dickinson  v.  Swatman,  above 
cited.  Rudisill  v.  Rodes,  29  Grat.  147.  But  this  results  from 
the  express  provision  of  the  statute. 

In  the  present  case  there  was  no  evidence  tending  to  show  that 
the  testatrix  intended  to  revive  the  first  will ;  unless  the  bare  fact 
that  the  first  will  had  not  been  destroyed  amounted  to  such  evi- 
dence. Under  the  circumstances  stated  in  the  report,  little 
weight  would  be  given  to  that  fact.  The  will  was  not  in  the 
custody  of  the  testatrix,  and  the  evidence  tended  strongly  to 
show  that  she  supposed  it  to  have  been  destroyed. 

The  question,  therefore,  is  not  very  important,  in  this  case, 
whether  the  subsequent  declarations  of  the  testatrix  were  admis- 
sible in  the  evidence  for  the  purpose  of  showing  that  she  did  not 
intend,  by  her  cancellation  of  the  second  will,  to  revive  the  first ; 
because,  in  the  absence  of  any  affirmative  evidence  to  prove  the 
existence  of  such  intention,  the  first  will  could  not  be  admitted  to 
probate.  Nevertheless  we  have  considered  the  question,  and  are 
of  opinion  that  such  declarations  were  admissible  for  the  purpose 
of  showing  the  intent  with  which  the  act  was  done.  The  act  itself 
was  consistent  with  an  intent  to  revive,  or  not  to  revive,  the 
earlier  will.  Whether  it  had  the  one  effect,  or  the  other,  de- 
pended upon  what  was  in  the  mind  of  the  testatrix.  It  would  in 
many  instances  be  more  satisfactory  to  have  some  decisive  dec- 


LATER  WILL  REVOKED —  EARLIER  WILL  NOT  CANCELED.  771 

laration  nuido  at  the  very  time,  and  sliowiD<»;  clearly  the  character 
of  the  act.  Evidence  of  dechiratioud  made  at  other  times  is  to 
be  received  with  caution.  They  may  have  been  made  for  the 
very  purpose  of  misleading  the  hearer  as  to  the  disposition  which 
the  speaker  meant  to  make  of  his  property.  On  the  other  hand, 
they  may  have  been  made  under  such  circumstances  as  to  fur- 
nish an  entirely  satisfactory  proof  of  his  real  purpose.  It  is 
true  that  it  may  not  be  proper  to  prove  the  direct  act  of  cancel- 
lation, destruction,  or  revocation  in  this  manner.  But  when 
there  is  other  evidence  of  an  act  of  revocation,  and  when  the 
question  of  the  revival  of  an  earlier  will  depends  upon  the  inten- 
tion of  the  testator,  which  is  to  be  gathered  from  facts  and  cir- 
cumstances, his  declarations,  showing  such  intention,  whether 
prior,  contemporaneous,  or  subsequent,  may  be  proved  in  evi- 
dence. 

In  the  great  case  of  Sugden  v.  St.  Leonards,  1  P.  D.  154,  the 
question  underwent  full  discussion,  in  1876,  whether  written  and 
oral  declarations  made  by  a  testator,  both  before  and  after  the 
execution  of  his  will,  are,  in  the  event  of  its  loss,  admissible  as 
secondary  evidence  of  its  contents;  jmd  it  was  decided  in  the 
affirmative.  It  was  admitted  in  the  argument,  at  one  stage  of 
the  discussion,  that  such  subsequent  declarations  would  be  ad- 
missible to  rebut  a  presumption  of  revocation  of  the  will;  but, 
this  being  afterwards  questioned,  it  was  declared  and  held,  on 
the  greatest  consideration,  not  only  that  these,  but  also  that  dec- 
larations as  to  the  contents  of  the  will,  were  admissible.  See 
pages  174,  198,  200,  214,  215,  219,  220,  225,  227,  228,  240,  241. 
The  case  of  Keen  v.  Keen,  L.  E.  3  P.  &  D.  105,  is  to  the  same 
effect.  See  also  Gould  v.  Lakes,  6  P.  D.  1  ;  Doe  v.  Allen,  12 
A.  &  A.  451  ;  Usticke  v.  Bawden,  2  Add.  Ecc.  123;  Welch  v. 
Phillips,  1  Moore  P.  C.  299;  Whitely  v.  King,  10  Jur.  (n.  s.) 
1079;  Re  Johnson's  Will,  40  Conn.  587;  Lawyer  v.  Smith,  8 
Mich.  411 ;  Patterson  v.  Hickey,  32  Ga.  156  ;  1  Jarm.  Wills  (5th 
Am.  ed.  by  Bigelow),  130,  133,  134,  142,  and  notes.  The  ques- 
tion was  also  discussed,  and  many  cases  were  cited,  in  Collagan 
V.  Burns,  57  Maine,  499,  but  the  court  was  equally  divided  in 
opinion.  Many,  though  not  all,  of  the  cases,  which  at  first  sight 
may  appear  to  hold  the  contrary,  will  be  found  on  examination 
to  hold  merely  that  the  direct  fact  of  revocation  cannot  be 
proved  by  such  declarations. 

The  result  is,  that,  in  the  opinion  of  a  majority  of  the  court, 
the  will  should  be  disallowed,  and  the  decree  of  the  probate 
court  reversed. 


C/1 
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